CAHILL & CAHILL

[2018] FCCA 2934

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAHILL & CAHILL [2018] FCCA 2934

Catchwords:
FAMILY LAW – Parenting dispute – mother seeking to relocate with young daughter from Melbourne to Sydney – mother in relationship with man based in Sydney and unable to relocate to Melbourne – father’s concern that mother will obstruct his relationship with child – court satisfied that despite recent friction mother would promote father’s relationship with father and extended family – mother being wholly financially disempowered if forced to remain in Melbourne – child’s best interests promoted by permission of relocation.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant: MR CAHILL

Respondent: MS CAHILL

File Number: DGC 718 of 2018

Judgment of: Judge Burchardt

Hearing dates: 1 & 2 October 2018

Date of Last Submission: 2 October 2018

Delivered at: Melbourne

Delivered on: 23 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Allen

Solicitors for the Applicant: Chris Woods & Associates

Counsel for the Respondent: Mr Scriva

Solicitors for the Respondent: Pentana Stanton Lawyers

DRAFT ORDERS

1. That the parents have equal shared parental responsibility for the child of the marriage [X] (also known as ‘[X]’) born … 2015 (“the child”).

2. The child live with the Mother.

3. The Mother and the child be permitted to relocate to live in Sydney, New South Wales.

4. The child spend time with the Father as follows:

   (a)For one (1) week of each of the New South Wales term school holidays and three (3) weeks of the Annual Summer holidays, save that in 2019 the child will spend two weeks with the father.

   (b)Christmas with the Father to be included in the Annual Summer holidays every second year starting at 11:00 am on Christmas Day;

   (c)By phone/facetime/skype at least two (2) times per week on set days, and also on Special Days such as birthdays, and other Special Days that she is not already spending time with the Father;

   (d)For the purposes of Order 4(a) the Mother to be responsible for the travel to and from the Father’s home for these week periods unless work restraints (the Mother’s Husband is on deployment) means the Mother cannot do the travel on her own (where a child is under 6 months) then the Father to assist and be flexible with collection and return of the child;

   (e)Should the Father not have holidays and require day-care or child minding, this be at his own expense; and

   (f)At any time that the Father is able to travel to Sydney, with seven (7) days’ notice.  The Mother will make the child available for such time as the Father is able to remain in Sydney – noting Kindergarten and School days must be complied with.  Should the Father be able to attend to this the child spend time with him during such times.

5. The parties do all such acts and things and sign all documents to enable both parties to provide with all details of any day-care, kindergarten or school and extracurricular activity that the child may attend including but not limited to notices, bulletins, online portals, photos, concert details, reports and invitations to events. 

6. The parties be at liberty to attend all day-care, kindergarten, school and extracurricular activities and events that parents are normally invited to attend including but not limited to first days, assemblies, concerts, sports days, special days, parent attendance days, excursions, parent/teacher/instructor interviews, performances, competitions and any other days that parents are normally invited to attend.

7. The parties do all such acts and things and sign all documents to enable both parties to be provided with all details and be able to make all enquiries in respect of the child’s medical/specialist/dental issues and health at their own expense.

8. Each party advise the other within two (2) hours of any medical emergency, serious injury or serious illness of the child while the child is in their care and provide details of any emergency twenty-four hours (24) clinic or hospital emergency attended by the child. 

9. The parties keep the other parent updated as to any medical diagnosis aside from general sickness of the child including diagnosis, prognosis, treatment and any other important matters.  Such updates to be provided in writing by email not later than seven (7) days after such diagnosis.

10. Each party is hereby restrained by injunction from:

    (a)Insulting, abusing, belittling or otherwise denigrating the other parent, their family or their partner in the presence or hearing of the child and from allowing any other person to do so and shall remove the child from such person if they are unable to require that person to cease doing so;

    (b)Discussing these proceedings in the presence or hearing of the child and from allowing any other person to do so and shall remove the child from such person if they are unable to require that person to cease doing so;

    (c)Being under the influence of alcohol or any illicit substance within 24 hours of the child being in their care and during the time the child is in their care;

    (d)Smoking cigarettes in the presence of the child or allowing any other person to do so and shall remove the child from such person if they are unable to require that person to cease doing so; and

    (e)Allowing the child to be unsupervised in the presence of Mr A (also known as ‘Mr A).

IT IS NOTED that publication of this judgment under the pseudonym Cahill & Cahill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 718 of 2018

MR CAHILL

Applicant

And

MS CAHILL

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a relocation dispute.  The mother of the child with whom we are concerned, [X], born … 2015 (referred to by everybody as [X]) wishes to relocate from Suburb B in Victoria to Sydney in New South Wales.  Her desire to do so arises out of her relationship with Mr C who lives and works in New South Wales and who is the father-to-be of their child expected to be born in … 2018.

2. The respondent father opposes the relocation.  He fears not only that his time with [X] will be significantly reduced if the relocation takes place, something ultimately everyone agrees would be the case, but that he will otherwise be cut out of [X]’s life.

3. While the father’s fears are in no way wholly irrational and his concerns of the diminution of his time with the child are entirely reasonable, I have concluded that it is in [X]’s best interests that the mother be permitted to relocate, for the reasons that follow.

Agreed or Uncontroversial Matters

1. The father was born on … 1985 and the mother was born on … 1987.  The relationship between the parents appears to have commenced in mid-2013 and they married on … 2014.  Separation, which seems to have been somewhat drawn out, took place by no later than August 2015, and they were formally divorced on 5 April 2017 (according to the mother).

2. Following separation, the father spent no time with the child until June 2016.  Both parents re-partnered relatively quickly.  The father is in a relationship with Ms D and has been since early 2016.  The mother is in a relationship with Mr C.  In her affidavit filed 11 May 2018 the mother described this as a long-term relationship but Mr C, who was born on … 1988, and she only commenced a relationship, on the mother’s version, in … 2017. 

3. The father is employed as a tradesman and the mother was employed by Employer before that company was placed into administration.  She is not now working.  Ms D is a tradesperson and Mr C is a tradesman.  He is presently based in Sydney.  There is a dispute about the extent to which he might be able to move, to which I shall return.

4. The father presently sees [X] each alternate weekend from Friday afternoon to Monday morning, plus occasional additional times permitted by the mother.  There is a dispute as to the extent to which the mother has or has not facilitated such time. 

5. The extended families of both the mother and the father are in Melbourne and both sides appear to agree, albeit with perhaps some differences of emphasis, that the child has an excellent relationship with her extended family. 

6. The father, additionally, has two other children:  [E], aged 10, and [F], aged 8, who live with their mother, Ms G.  The father has not spent time with those children since 2015.  The mother and Ms G are in occasional contact and the children have spent time with [X] on some occasions.

The Affidavit Material

1. I have read the parties’ affidavit material carefully.  In large part, the main matters asserted in those affidavits are contained in the agreed or uncontroversial matters set out above.  Because of the way the case has actually developed, and the rather narrow front upon which dispute has been engaged, it is appropriate simply to concentrate on the evidence given at Court, save for the affidavit of the Family Consultant, Mr H.

The Family Report

1. Mr H’s report is on affidavit.  I note that, in his narrative, Mr H, having noted the age of the children and other uncontroversial matters, described at paragraph 2.6, the four reports to Child Protection for [X] between 2015 and 2018.  In part, this related to concerns regarding [X]’s contact with her maternal uncle, Mr A, who, it appears, has been convicted of child pornography offences.  A Protection Order was in place from August 2015 until October 2016 due to concerns regarding the mother’s contact with Mr A, her mental health and the father’s mental health and prescription drug abuse.

2. The report noted, in respect of the father at paragraphs 4.3 and 4.4:

   “4.3  Mr Cahill presented at interview as a frank and purposive man, clearly focused on what he sees as the best interests of his daughter, [X].  He was accompanied by his current partner, Ms D.  His main concern about the proposed relocation became clear from the very beginning of our discussion:

   ‘I’d rather her here withal her family and friends … Every bit of her family and support is here … Her primary school would be better here too … For example, she is very close to Ms D’s dad … she sees him at least fortnightly … If she went to Sydney, we could only see [X] 2 or 3 times a year’.

   4.4  Mr Cahill said that he

   ‘want[s] her to be with her mum’.

   Nonetheless, an important subtext became clear a little later in our discussion.  Mr Cahill does not entirely trust Ms Cahill’s assurances that she wants him to remain actively engaged in [X]’s parenting:

   ‘If she goes to Sydney, she’ll be in charge and I lack confidence she’ll be as co-operative as things seem at the moment’.

   He reinforced this view with comment with comments about ‘threatening texts’ he had received and discussion about whether or not Ms Cahill ‘doesn’t like Ms D.”

3. In paragraph 4.9, Mr H recorded:

   “My overall sense was of a father who wanted to be an active and engaged contributor to his daughter’s care, welfare, and development but who knew that the way this might happen would be changed radically by relocation.”

4. The interview with the mother disclosed, unsurprisingly, that she wished to start her life with Mr C and that she would be a single parent with two children on Centrelink should she remain in Victoria.

5. Relevantly, at paragraph 5.4 Mr H recorded:

   “I also asked what she thought would happen if the Court decided that [X] could not be relocated.  She said:

   “I’m not really sure what we do if they say no … Mr C’s been up there for 2 years … If he could move here I wouldn’t go … I know she loves spending time with Mr Cahill … And despite some stupid things I’ve texted, I’ve never really tried to keep her away from him … I want her to have a good relationship with her father.”

6. At paragraph 5.6, Mr H observed:

   “I detected no disingenuity in Ms Cahill’s discussions with me about what she sees as the most beneficial future course for her, her daughter and her unborn child.”

7. At paragraph 6.4, Mr H recorded:

   “I saw no significant signs of apprehension, withdrawal, acting-out or disruptive behaviour as [X] arrived, moved between her parents, farewelled her mother and left with her father and both parents managed her behaviour affectionately with easy, direct instructions.  There was obvious physical affection between [X] and both parents.”

8. Mr H noted at paragraph 7.1 that the mother had been the primary attachment for the child, but that, at paragraph 7.2, [X] also has a robust and developmentally important father/daughter bond with the father. 

9. Mr H noted that, in the ordinary course of events, the child would live with the mother and spend some substantial significant time with the father in a 10/4 arrangement but that the relocation proposal made this impossible.  At paragraph 7.7 Mr H traversed a number of the matters that would be relevant.  At paragraph 7.7.2 Mr H set out three matters which are key that mitigate or exacerbate the psychological outcomes through children attempting to cope.  In subparagraph (a) he said:

   “The most critical of these factors is the psychological health and parenting practices of the parent with whom the children live, usually the one with whom the children had their primary attachments.  If this relationship is stable and secure, it is vital that it is protected.  In my view, the prospect of [X] being other than with her mother is not in her best interests”

   (The father’s initiating application sought that the child live with him if relocation occurred).

10. The second matter raised by Mr H, at subparagraph (b), was the economic stability of the post-separation family.  Mr H noted that this and the first matter related to the rationale that the mother gave for her proposal to relocate. 

11. At subparagraph (c) the report referred to the post-separation relationship between the parents and Mr H opined:

    “My discussions with [X]’s parents suggest that generally their post-separation parenting relationship has been communicative and collaborative and that the current conflict between them is very specifically related to the issue of relocation.”

12. Having dealt with a number of other important but less significant matters, including support of extended family and the adjustment of the parent with whom the child does not live, Mr H continued at paragraphs 7.10 – 7.13:

    “7.10  My own observations suggest that both the quality of [X]’s relationship with her father and her language skills are such that her bond with him could be maintained and could grow at a distance with adequate provision for them to spend time together regularly, and with this supplemented with frequent Internet chat communication.

    7.11     And so, on balance, and from the psychological perspective, it is my view that [X] should be allowed to relocate to Sydney with her mother, Ms Cahill.

    7.12    I think the proposal that she spend substantial holiday time with her father is reasonable in the circumstances, but I would also recommend at least monthly weekend contact in the months where there are no holidays, perhaps shared between [X] going to Melbourne and her father going to Sydney.

    7.13    In these arrangements I think it would be vital that [X] also have liberal, voluntary Internet communication with her father, encouraged and facilitated no less than twice a week.”

The Submissions Made and the Evidence Given at Court

1. What follows is taken from my notes.

2. Counsel for the father opened briefly.  The father opposes relocation and accepts Mr H’s recommendations for the 4/10 regime and the half school holidays in Melbourne.  [X] was brought up here and has both paternal and maternal family in Melbourne.  The mother has not been promoting the relationship with the father and this would be worse if she were to relocate to Sydney.  The father would suffer significant difficulties in trying to travel to Sydney during school time.  He drives a 20 year old vehicle which may not be up to the task.  He sought three weeks of time with the child in January 2019 should relocation be permitted.  (This latter aspect of the matter has been resolved by consent as the trial proceeded).

3. The father was called and adopted his affidavits as true and correct.  He is employed as a tradesman.  His 1999 vehicle is not the greatest but is roadworthy.  He uses it for work.

4. Under cross-examination the father agreed that the present time regime is as it was put to him.  He was totally opposed to Mr A spending any time with the child.  He had been convicted of having 12,000 images of child pornography and the Children’s Court has said he should not have any unsupervised time.  Time has been supervised by the maternal grandmother.

5. The father said it was very hard to look after two children on your own.  The mother will have post-natal depression because this continues on.  (She had depression, of course, after the birth of [X]).  He conceded that the mother would seek services if she was depressed.  He said that the child needs to be in Melbourne because there is family support here. 

6. The Department of Health and Human Services (“DHHS”) went to the Children’s Court.  It was very hard at that time.  The mother had found out that her father had done things to her.  He had decided that [X] was better with him for a weekend.  The mother did a runner when [X] was with her.  He went to her house and the mother was not there.  (This aspect of the narrative seemed relatively unclear but it emerged that the father had attended the mother’s home when she was not there and taken the child with him).  The mother asked for the child back the next day and his own mother involved the DHHS.  He went back to the house a couple of days later and DHHS were there.  DHHS went to the Children’s Court because they were concerned that both parents needed help.  Both were required to attend therapy.  The maternal grandmother had to live with the mother for six months.

7. I should interpolate that the father was, in my view, at pains to turn his answers to what he perceived to be his own benefit during this passage of the evidence.

8. The father’s time had to be supervised and the children were returned to the mother in less than a week.  The mother had, at one point, given him more time.  She complied with orders about treatment.  The maternal grandmother was looking after the child full-time.  The mother was living on her own for a year.  The father does not trust the bloke the mother lives with.  It would be hard to rebuild trust.  He said that they do not talk but they should do.  It is not just relocation.  There were trust issues during the relationship.  The mother was helped by strangers and this worried him.  (It was clarified that the strangers to whom he referred were professionals).

9. He said that there was a relationship between him and the mother commencing in 2012.  He had separated from Ms G five years before.  The first year of the breakup was very hard.  He did not see the children.  Then every fortnight.  Ms Cahill had encouraged him to see the boys.  When his relationship with Ms Cahill broke up the boys did not want to see him.  They are 11 and 9 now.  The mother and Ms G are talking.  After the breakup with the mother he was depressed and he got anti-depression tablets through his general practitioner.  He is still taking them but on a lower dosage.  He was depressed when he commenced his new relationship with Ms D.

10. When it was put to him that his main reason for [X] staying here was that her relations are here, he said “yes”.  If there was relocation it would not be fatal but the bond would decline.  He does not want telephone time in any event.  He had tried to get more time but Ms Cahill refuses.

11. When it was put to him that there had been one refusal only, he said the mother had threatened to breach the orders but eventually gave in.  He was of the opinion that the mother believes she has all the power in the relationship.

12. I would interpolate, again, and say that the father’s answers, at this passage of his evidence, were waffly and unconvincing.

1. The father said the less time [X] has with him the less trust he would have as to what the attitude of the mother would be.  If the father figure is not there all the time the relationship diminishes.  It had been the same with his own father.  There has to be time face-to-face at least once per fortnight.  If the mother relocates the child could be with him.  He accepts that there is a strong bond between the child and the mother.

2. When it was put to him as to whether he accepted that the mother had genuine reasons to relocate, the father said, “for her lifestyle, yes”.  She is having a new baby.  He accepts that her new boyfriend comes down to Melbourne and has taken some financial responsibility for the mother and her household.  This relationship should be promoted.  But [X] should not be away from him for 98 per cent of his life.  He accepted that the boyfriend cannot relocate to Melbourne for three years.

3. When it was put to him that the mother would travel to Melbourne he replied: “You hope”.

4. He conceded that her baby was due on … 2018, but when it was put to him that this meant that the mother could not come to Melbourne, the father’s answers were unconvincing.  He was prepared to accept half the school holidays and the long summer holidays this year.  The most time that [X] has spent with him so far is three nights but [X] could now cope with longer because she is older and has friends.

5. The father accepts that the mother’s mental health is important for [X] and it would be hard for her if she did not relocate.  Either way, one of them will be crushed.

6. The father purported to explain how it was that Mr C could relocate to Melbourne and retain his employment but his purported expertise was unconvincing.

7. The father opposes relocation.  The child has a relationship with the paternal grandmother and needs all of it.  He has not, himself, thought to relocate to Sydney.  He is aware of the mother’s financial difficulties and that she has taken in boarders.  At the time he was not working.  He is now back at work.  He has to make voluntary payments, if any, to the mother because all his Child Support goes to Ms G.  The mother is entitled to Child Support and she has asked.  He offered $83 per week but she declined.  She wanted more.  He had completed his tax returns three months ago.

8. The father said that there were many factors relating to his opposition to relocation.  He now understands he can fight to see his boys (he intends to do so).

9. Under re-examination the father was asked that in the event of [X] spending time with him and becoming distressed, whether he would return the child to the mother early.  In my view, the father’s answers were essentially prevaricatory although he did eventually, apparently, concede that he would have to take the child back to the mother.

The Evidence of Ms D

1. Ms D is a tradesperson who adopted her affidavit as true and correct.  Under cross-examination she confirmed that all her family are in Melbourne.

The Evidence of the Mother

1. The mother adopted her affidavits as true and correct save to the extent she has said that the DHHS application to the Children’s Court did involve her mental health but this one was one factor only, not the only one.

2. Under cross-examination the mother confirmed that she has been staying with her sister since she sold her house.  She has been there eight weeks and no one else lives there.

3. The mother conceded she had post-natal depression after [X] was born.  She has spoken with Mr C about this possibility.  Mr C will get 10 weeks paternity leave.  All her family is in Melbourne and they support her.  She has discussed staying in Melbourne with Mr C.  All the baby stuff is already in Sydney.  It was possible that Mr C might have to attend to some duty once per fortnight during his paternity leave.  It is, in fact, a mix of carers and annual leave.  Her sister’s flat is a single bed apartment.

4. The mother conceded that she had been critical of the father bringing these proceedings.  She had planned to relocate in September.  She had also talked about June.  She said that she needed Mr C as a support both financially and otherwise.  If he was here she would not leave.  Mr C can support them on his income in Sydney.  She had sold her home in Melbourne and obtained approximately $100,000 net of which about half had gone to court fees.

5. She was happy for the father to have two weeks of the long Christmas holidays this year but after that he could have half.  She wanted more time for [X] to bond with the forthcoming baby.  It was preferable that time be spent in New South Wales but this was up to the Court.  She had spoken with Mr C about coming to Melbourne four times each year.  Mr C can always make Christmas.  Term holidays could be case-by-case.  Her own family will come to New South Wales.  Nonetheless, they will also see the new baby in Victoria.

6. She had allocated the funds from the sale of her house to pay for spending time in Melbourne.  She said that she had always tried to encourage the relationship between [X] and her father since separation.  I would interpolate and say that this evidence was given with sincerity and I accept it.

7. The mother said that Skype and other contact would not be a problem for her.  There were no reasons for her to deny time.  Mr C would initiate phone calls if she was in hospital.  She said that she and the father had had good and bad periods since the breakup but she had never kept [X] from him.  She had only threatened to withhold the child once and denied some extra time.  It was put to her that she had described the father in an email to him as a “cunt” and she accepted this, but said that she had many abusive messages from him.

8. The mother said that [X] showed drastic behaviours when she had spent weekends with the father but this was getting better now.  She would mediate if there were problems in the future.  She will do what she can to make things less difficult for [X].  She had no problems with the father spending time in Sydney with [X] if he gave seven days notice.  If [X] has swimming he can still have her provided he takes her to the swimming.

9. When questioned about the relationship of [E] and [F] with [X], she said that it was not that close.  She has seen them three times this year for one hour visits.  [X] does not mention the boys at all.  She said that when they come down she will let Ms G know.  She does what she can.  The father has got better as a father over the years.  She described the father as a better parent than a husband.  Mr C and [X] get along well and [X] loves her father.

10. The mother said that both she, Mr C and her mother always refer to the father as daddy.  [X] sometimes calls her Ms Cahill and [X] calls Mr C, Mr C.  [X] made Father’s Day cards for Mr C and the father.  Her kindergarten teacher arranged this.  She has enrolled the child in child care in Sydney.  Mr C handed in the forms for her.  She had not engaged the father in this process.  Things have been hostile since the proceedings were started.  The father is included as an emergency contact.  She supports Mr H’s proposals but it is not possible for her to come during school term.  It is important to get into a routine at kindergarten next year.

The Evidence of Mr C

1. Mr C adopted his affidavit as true and correct.  He is a tradesman.  To become a leading tradesman, he has to finish his trade as a tradesman which will take one to two years.  He would also need another year’s worth of seniority.  It will take at least three years before there is any prospect of him relocating to Melbourne in his employment.

2. Under cross-examination, Mr C indicated that he was aware that the mother would not move if relocation with the child was not permitted.  He was not sure what he would do in this event.  He is contracted with his employer and cannot break it.  It would take a year and would involve big financial cost.  He would have to look at jobs because he would be the only one earning.  He is working on his trade with the employer.  It is similar to an apprenticeship but he does have other work.  He will not be away working next year.

3. He is working at … Sydney.  He should receive 8 to 10 weeks of paternity leave although he may have to go in on occasional dates.  He would not have a house in Melbourne.  The mother’s family and his will come and visit in Sydney.  He spent 10 years in Sydney as a child.  He would consider moving to Melbourne down the track as the mother’s family is there.  His role is to give [X] every support she needs.  [X] always calls him Mr C and he always refers to Mr Cahill  as dad.  He has nothing against the father.

4. When he is with [X] he treats her well.  He would 100 per cent support the mother to come to Melbourne for visits.  It is important for [X] to have the father in her life.  He had enrolled [X] at the … child care.  He put the father on the emergency contact list.  He was not sure, when pressed, if this was the case.  He had put the forms in in August.

5. The rental property occupied is a normal rental and has an 18 month lease.

The Evidence of Mr H

1. Mr H adopted his affidavit as true and correct. 

2. Under cross-examination by counsel for the father Mr H confirmed that the mother should move to Sydney.  He would recommend monthly time with the father as holidays was not enough.  [X] will start school in 2020 and four year old kinder next year.  This is important for socialisation.  On balance, he agreed that the child could be taken out of kinder in the forthcoming year to see the father.  Mr H envisaged visits of four to five days not just Saturday and Sunday.

3. The relationship with both parents was strong and developmentally important.  Neither parents wanted to exclude the other.  He was not aware of the mother’s messages to the father, including the one in which she described him as a “cunt”.  He then, however, said he might have seen the texts appended to an affidavit.

4. Mr H thought that both parties were reasonably genuine in valuing the role of the other parent.  Children are often disruptive when they return from time with the other parent.  The conflict in this case, when he saw it, was about 5 to 6 out of 10.  His proposal was for substantial and significant time and this generally works well.

5. Mr H said that the mother should be able to do Friday to Monday in Melbourne once per term.  It was important there be contact with both extended families.  One day off school four or five times a year was not a problem.

6. When he was asked what he thought about the father’s claim for five nights before the child goes to Sydney, Mr H said this would be okay if the parties cooperated.  This was, however, longer than she had been away from her mother thus far.

7. Under cross-examination, by counsel for the mother, Mr H confirmed that contact with the extended family was less important but could still be very important.  The conflict between the parties was situational about the relocation.  The mother was genuine in her economic concerns.  It was indisputable that the primary carer’s wellbeing is the most important matter.  The mother is expecting a child which is an extra stress.  She wants to register with doctors and the like in Sydney to prepare for the baby. 

8. Skype could be important but physical presence is important.  Telephone can be problematic with young children.  Mr H confirmed that four to six days per year was not a problem. 

9. It should be noted that the mother confirmed through counsel that the child could spend five nights with her father before relocation to Sydney were this to occur.

10. I do not propose to paraphrase the parties’ submissions which were both able and commendably economic.  I obviously have had regard both to the written submissions and oral submissions advanced by counsel for the mother and the oral submissions on behalf of the father.

11. I would, however, note that the parties are ad idem in the sense that if relocation is not permitted then Mr H’s recommendations are to be adopted.  The real dispute, in truth, relates to whether or not relocation should be permitted.  The only ancillary area of dispute is really, in the event that relocation is permitted, whether the mother be required to return, as Mr H says is desirable, to Melbourne every month or at least once during each school term, even though [X] will not be in school for another year.

Findings about the Credit of the Witnesses and As To the Disputed Facts

1. Both these parents struck me as being inherently thoroughly decent people, as did Ms D and, to the extent that one could form an impression bearing in mind he was in Country J on the phone, Mr C.

2. Some aspects of the father’s evidence were unsatisfactory and there was a certain sense of smugness and self-satisfaction in his demeanour.  Nonetheless, I repeat, he is obviously a man who loves his daughter and who has her best interests sincerely at heart.

3. Ms D struck me as a thoroughly genuine and impressive witness.

4. The mother was a composed and honest witness.  She did not seek for a moment to evade questions about the offensive text that she had sent the father.  She plainly loves and adores her child but, as I find, has not sought unfairly to exclude the father.

5. It is clear that relations between the father and mother have become more strained since this relocation issue presented itself.  I have no doubt that exchanges between the parents have been less than entirely satisfactory as a result.  I accept that the mother has not, save on the most isolated occasions, sought to prevent the father having more time with the child and, indeed, has done her best to accommodate his various requests.

6. The mother’s decision to enrol the child in kindergarten in Sydney without any contact with the father – and, in my view, while clearly undesirable – just reflects the tension of the moment.  The same can be said of the various anticipatory steps that she is conceded to have taken to relocate.  She has clearly proceeded on the footing that it is likely to occur, but while accepting that one level of analysis must necessarily be extremely concerning to the father, one must wonder what else she could do, given the practical difficulties that she faces.

7. Relocation cases do not always readily fit the scheme of the statutory pathway set out in Goode v Goode but it is important to remember what it is.

8. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Parental Responsibility

1. Both parties agree there should be an order for parental responsibility.  It is clearly entirely desirable that there be one.  There is no suggestion of family violence to rebut the presumption.  It is all the more desirable that the father be involved given the potential difficulties of distance.

The Primary Considerations

1. Both parents agree that it is important for [X] to have a meaningful relationship with each of her parents and the materials in the case do not, in any sense, suggest that there is a need to protect [X] from family violence, even within the extended definition in section 4(AB) of the Family Law Act 1975.

The Additional Considerations Section 60CC(3)(a)

1. [X] has not expressed any views given her age.  Nonetheless, it is clear from what everyone says and, more particularly, the report of Mr H, that she has a good relationship with both her parents and it is reasonable to suppose that she wants to spend time with them both.

Section 60CC(3)(b)

1. The child plainly views the mother as her primary carer.  She nonetheless has a substantial and age appropriate and well-established relationship with her father.  Everyone seems to agree that she has a good relationship with extended family members on all sides. 

Section 60CC(3)(c)

1. The mother is the primary carer of the child, has undoubtedly taken the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time and communicate with her.  While things had a bit of a hiatus after the immediate breakdown of the relationship, when the father was depressed, there is no doubt that he has likewise sought to be involved in her life.  He has prosecuted his case to judgment accordingly.

Section 60CC(3)(ca)

1. The mother has undoubtedly fulfilled her obligations to maintain [X].  The father’s position is slightly more opaque.  His evidence about his endeavours to provide Child Support were, to an extent, unclear.  He has offered the mother $83 a week which, for reasons that make no sense to me, she has not accepted.  But he has not, as I find, gone out of his way to be overly generous.  Equally, however, it must be noted that he is in poorly paid employment and may well struggle to make significant contributions in any event.

Section 60CC(3)(d)

1. This, of course, in one sense, raises the critical issue of relocation. I will return to that when I deal with section 60CC(3)(m). For present purposes, it is sufficient to note that the child has always lived in the primary care of her mother. The father’s application that the child live with him in the event that relocation occurs was scarcely pressed and rightly so.

2. The reality is that wherever the mother is going to live [X] must live predominantly with her.

Section 60CC(3)(e)

1. There are obvious practical and economic difficulties for people who are not overly blessed with funds, such as these parties, in the event that relocation takes place.  These difficulties will not obtain if the mother remains in Melbourne.  Once again, I will return to the practical realities of relocation in due course.

Section 60CC(3)(f)

1. In my view, each of these parents is well able to look after [X] when in their care and there is no suggestion that their partners are not likewise able to do so.

2. It should be noted that the child’s relationship with her half-siblings, [E] and [F], is not that well developed.  The mother’s evidence was that, after all, she is a third party to the relationship of [E] and [F], and this is entirely correct.  It appears that she is doing her best to foment it.

Section 60CC(3)(g)

1. These are two perfectly decent parents.  They have their weaknesses and have, at times, expressed themselves to one other, no doubt, in inappropriate language.  Given the tension of this current set of circumstances I find that unremarkable.  The child appears to be a well adjusted normal child for her age.  There is no suggestion of drug abuse or substance abuse of any sought.  It is a pleasingly benign landscape.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(i)

1. Inevitably, each of these parents have, in part, a somewhat proprietal aspect to their views of the child.  It is an unexceptional or normal human response.  The reality is that their desire to relocate, in the case of the mother, and to oppose it, in the case of the father, owe everything to their perceptions of their own personal needs.  Given the relocation issue this is wholly unsurprising.

Section 60CC(3)(j)

1. This is not relevant.

Section 60CC(3)(k)

1. Likewise, this is not relevant.

Section 60CC(3)(l)

1. It is plainly desirable to make final orders.

Section 60CC(3)(m)

1. This brings us, at last, to the vital and decisive dispute in this matter.  Counsel for the father, in final submissions, referred, as indeed did counsel for the mother, to the obvious public policy issues that arise in a large country like Australia where people have a legitimate desire to move from one place to another place that is far away.  Counsel also pointed to case law, which is not in dispute, pointing to the fact that the Court, of course, is concerned first and last with the best interests of the child.

2. In the end, I should make it clear that the mother’s desire to relocate is not, in any sense, capricious, misconceived or spiteful.  She has formed a relationship with a man who lives in Sydney.  Realistically, he cannot leave Sydney for the foreseeable future.  She is going to have his child, [X]’s half-sibling, in December.  She has lost her job through the failure of her former employer and her employment prospects with two very young children are negligible.  She will be economically disempowered, as well as emotionally miserable, in the event that she does not move.

3. I note that these were the first two criterion referred to as “of greater significance” by Mr H.

4. The father’s opposition to the mother’s desire to relocate is likewise not capricious or spiteful.  He adores his child and fears that he will be frozen out if the mother relocates.  On any view of the matter he will spend much less time with her should this occur.

5. In the end, my conclusion can be stated shortly.

6. It is not in [X]’s best interest that her mother be forced to stay in Melbourne where she does not want to be, absent from the man she loves and the father of her baby to be, and economically disempowered.  The effects upon the mother of such an outcome are instantly obvious and utterly undesirable.  While the relocation is, in one sense, unfortunate, it is a fact of life and I have no doubt that it is in [X]’s best interest that the mother be permitted to relocate.

7. I note that this is after all not a decision taken forever.  The mother’s family are from Melbourne and Mr C is perfectly prepared to contemplate relocating in times to come albeit that this may take at least three years. 

8. [X] is only three years old.  She may well be back in Melbourne before primary school is finished.

9. The father’s concerns about relocation really boil down to a loss of time on his part, a concern that the mother will cut him out, and a concern that [X]’s relationship with extended family will be damaged.

10. It is important to note that, as Mr H’s report indicates, it is qualitative time rather than quantitative time that is vital.  While suboptimal, the extensive time arrangements proposed by the mother are, in my view, likely to sustain the relationship not only between the father and Ms D and the child, but also the extended families.

11. I note that Mr H found nothing disingenuous in the mother’s position and, with respect, I entirely agree.  She plainly intends for the father to continue to play a significant role in the child’s life.  It is true that her behaviour in enrolling the child in kindergarten without notifying the father is unfortunate but, as I have already indicated, this is just part of the stress of the current dispute and the need to keep things moving in what is after all a difficult set of circumstances.

12. I have no doubt the mother will continue to promote the relationship between the father and the child as, indeed, clearly will Mr C.

13. The only issue that this then leaves outstanding is whether the mother should be required to come to Melbourne on a monthly basis for some four or five days.  While this is plainly what Mr H thought was desirable, it is, in my view, impracticable.

14. The mother will be reliant solely upon the income of Mr C in Sydney.  She will have another very young child to deal with.  The notion that she can readily come down for four or five days, even once a term, is, in my view, unrealistic.  The far more realistic proposal is that the father give seven days notice and go to Sydney.

15. I note that both of these parties have referred to the need to drive from Melbourne to Sydney or vice versa.  The days when air travel was so expensive that only travel by car was affordable are long gone.  There are very affordable flights now available in the event that people book early.  It should be readily possible for the father to get up to Sydney for a couple of weekends per term.  He lives in Ms D’s house (he does not appear to pay rent) and while his wages are not great they should be sufficient to enable this to occur.

16. I propose to make the orders contended for by the mother.

Conclusion

1. I wish to repeat that, despite some minor criticisms of the parties that their evidence was given with transparent honesty.

2. These are two thoroughly decent parents who appear to have had the good fortune to re-partner with thoroughly decent people.  There has been some fraction and some difficulty of recent times occasioned by the current dispute which, after all, is of its nature a difficult one.

3. One party or the other must necessarily be terribly disappointed in the outcome.  It is to be hoped, notwithstanding this disappointment that the parties can move forward cooperatively in [X]’s best interests.  Given their innate decency I have no doubt they will be able to do so.

I certify that the preceding one-hundred-and-fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 23 October 2018