CALCOTE & RADANT

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALCOTE & RADANT

[2020] FCCA 1829

Catchwords:
FAMILY LAW – Application for relocation – 13 year old child strongly aligned with the father – father’s relocation proposals likely to have positive benefits for child’s educational, social and working life.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases cited:

Mazorski & Albright [2007] FamCA 520

Taylor & Barker [2007] FamCA 1246

McCall & Clarke (2009) FLC 93‑405

Goode & Goode [2006] FamCA 1346

A v A Relocation Approach (2000) FLC 93-035

B v B: Family Law Reform Act 1995 (1997) FLC 92-755

U v U (2002) FLC 93-112

Lansa & Clovelly [2010] FamCA80

Sampson & Hartnett [2007] FamCA 1365

Rose and Rose [2009] FamCAFC 81

Pitken and Hendry [2008] FamCA 186

Applicant:

MR CALCOTE

Respondent:

MS RADANT

File Number:

BRC 5235 of 2010

Judgment of:

Judge Willis AM

Hearing dates:

20 February, 13 and 19 March 2020

Date of Last Submission:

19 March 2020

Delivered at:

Cairns

Delivered on:

6 July 2020

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Solicitors for the Respondent:	Self-represented
Counsel for the Independent Children's Lawyer:	Mr Eylander
Solicitors for the Independent Children's Lawyer:	Mr Wright

ORDERS

All previous Orders are discharged.
Neither party is to discuss these Orders directly or indirectly with the child until such time as Order 28 (in which the Independent Children’s Lawyer has had the opportunity to explain the Orders to the child) has been attended to as confirmed by the Independent Children’s Lawyer.

BY CONSENT IT IS ORDERED THAT:

The Father have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child X born in 2007 (“the child”), subject to the communication and notification of such decisions to the Mother, including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
In exercising his sole parental responsibility unless the urgency of the situation prevents him from doing so, the Father will give the Mother seven days notification before making a major long-term decision. The Mother is permitted to respond in writing promptly with her view however the decision is to be made solely by the Father. Specifically in relation to schooling, the Father will give the Mother as much notice as possible as to any proposed change and the Mother will have an opportunity to respond promptly. The final decision lies solely with the Father. THE COURT NOTES THAT the Father has already indicated the intended schools in relation to the proposed relocation to the New South Wales area.
The child is to live with the Father at all times other than when the child spends holiday time with the Mother as set out in these Orders.

IT IS ORDERED THAT:

The Father is permitted to relocate the child’s residence to New South Wales, such relocation to occur at timing solely determined by the Father.
Upon the relocation to New South Wales, the child will spend holiday time with the Mother as follows (unless agreed otherwise in writing):
(a)For one half of each of the school holiday periods in Easter, June/July and September/October, commencing the first half of the holidays in even numbered years and the second half in odd numbered years. The first half of the holiday will commence on the Saturday following the last day of school and conclude the following Sunday and the second half of the holidays will commence on the Saturday of the mid-weekend of the holidays and will always conclude no later than the last Sunday before school resumes;
(b)In relation to Christmas Holidays, the child will spend four weeks with the Mother. The first four weeks and the last four weeks will alternate as set out in Order 7(a) herein. The first half of the holiday will commence on the Saturday following the last day of school and conclude after four weeks and when the four week period is taken as the second part of the holidays, the holidays will always conclude no later than the final Saturday before school resumes.
The child will spend the balance of all of the school holidays with the Father.
The Father is to pay for the child’s costs of travel to and from the Father’s residence to the City B Airport or other City B location as nominated by the Father. The mode of travel to and from City B is at the Father’s sole discretion and the Mother is to do all acts and things to collect the child from the City B Airport or other location nominated by the Father.
The Father will provide the child’s travel itinerary to the Mother no less than three days prior to the child’s travel to City B.
In the event that the Mother proposes travelling to New South Wales for a short holiday period to spend time with the child, the Mother is to give no less than 2 weeks notice to the Father. The Father will do all acts and things to ensure that he facilitates reasonable time for the child to spend with the Mother such time will not occur during the child’s periods of school holidays with the Father. The time to be spent in New South Wales by the Mother in this manner is to be discussed between the parties taking into account X’s age and work commitments and schooling or other obligations.
The Father will do all acts and things to ensure the child has telephone/FaceTime with the Mother each Tuesday and Sunday at 6:30 pm and at all reasonable times as requested by the child. The Tuesday and Sunday can be varied from time to time by the Father to accommodate the child’s extra-curricular activities.

BY CONSENT IT IS ORDERED:

Each party will inform the other of any significant medical appointments or procedures or medication prescribed for the child by way of Talking Parents App NOTING THAT the Father has sole parental responsibility for medical decisions.
Each of the Mother and Father will contact the other parent straight away in the event of any medical emergency involving the child or as soon as practicable of a medical emergency involving themselves.
Each party will keep the other informed of their current residential address and mobile phone number and any changes must be notified within 48 hours.
Each party has liberty to provide a copy of these Orders to the child’s school and treating medical practitioners.
These Orders act as authority for either parent to obtain at their own expense, school reports, photographs, certificates and awards received by the child and other school communication such as newsletters normally provided to parents NOTING THAT the Father has sole parental responsibility for decisions regarding the child’s education.
Each party is at liberty to attend all educational events and extra-curricular activities at which the child attends subject always to the sole discretion of the school or organising body and subject to the restraint contained in Order 20(e) herein.
During the time the child is with either parent, each parent is not to interrogate the child about his life with the other parent and should always speak respectfully and without denigration toward the other parent in the presence or hearing of the child. Each party will remove the child from the presence or hearing of any person denigrating either party. Denigration for the purpose of this order includes a parent referring to the other parent with a derogatory nickname.

IT IS ORDERED THAT:

The Mother is restrained from:
(a)Removing the child from any school he attends other than as set out in the terms of these Orders;
(b)Giving any directions of any kind to the school that the child attends from time to time NOTING THAT the Father has sole parental responsibility for decisions relating to education;
(c)Giving any directions of any kind to Sporting body or other authority of any other extra-curricular activity that the child attends from time to time;
(d)Giving directions to doctors or dentists regarding the child’s treatment.
(e)Attending at the child’s school or extra-curricular activities without giving the father and the school or organising body at least 5 days notice.
In relation to the child’s time with the Mother, the Mother is to do all acts and things necessary and cooperate with the Father in all respects to ensure that the child is returned to the Father pursuant to the terms of these Orders.

Passport

The parties are to do all acts and things to sign all documents necessary to obtain a passport for the child X born in 2007 (“the child”). In the event the Mother fails or refuses to sign the documents, the passport is to issue notwithstanding that the Mother has failed to sign all documents necessary to do so.
The Father is responsible for the costs of the passport issuing and is to retain possession of the passport.
The Father and Mother are permitted to remove the child from the Commonwealth of Australia for the purposes of a holiday at times when the child is spending holidays with each respective parent or other times as agreed between the parties in writing.

Until the Father and child leave City B

The child will spend time with the Mother after school Thursday to the commencement of school Monday or Tuesday if Monday is a pupil free day or holiday.
The Mother is to do all acts and things to ensure that the child is assisted to leave City B with the Father.

Other Orders

The Independent Children’s Lawyer is to forthwith make the necessary arrangements to have the terms of these Orders explained to X including the holiday provisions with the Mother in City B.
The Father is to do all acts and things to deliver up the child to the Independent Children’s Lawyer for the purposes of having the Orders explained to the child at a date and time indicated by the Independent Children’s Lawyer.
In the event the child is with the Mother, the Mother is to do all acts and things to hand the child to the Father to enable the Father to comply with Order 28 herein.
The Independent Children’s Lawyer will be discharged 30 days after he has explained the Orders to the child save and except for an appeal.
All outstanding Applications are removed from the pending cases list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

BRC 5235 of 2010

MR CALCOTE

Applicant

And

MS RADANT

Respondent

REASONS FOR JUDGMENT

This matter involves a determination of where the child, X born in 2007 the child will live.
Mr Calcote the father seeks an Order that he be permitted to relocate with the child to the Town C area of New South Wales and spend time with the mother during school holidays and other special occasions.
Ms Radant the mother is opposed to the parenting Order sought by the father to relocate X. She seeks an order that the child remain living in City B. The mother has failed to stipulate what time the child should spend with her in the event of relocation. The most the mother would concede at the conclusion of the trial, was as much time as possible. The mother said she would not stipulate a time until her request that the child be assessed for medical conditions was complete.
Leading up to the trial, the child has lived in City B with the father and mother on an equal time basis.
Prior to the trial commencing the parties agreed to various significant issues.
They have agreed that the father will have sole parental responsibility and he will give the mother notice of a long term decision before it is made.
The parties have agreed that whilst the father lives in City B, the child will live with the father primarily. They have also agreed that whilst the father lives in City B, the child will spend each alternate weekend from Thursday to Monday with the mother and half the holidays along with special days.
The most significant issue that they cannot agree upon is the father’s request that he be permitted to relocate X to start a new life with the father in the Town C area, where the father has the opportunity of employment.
Each of the parties have been self-represented in this matter. The Independent Children’s Lawyer Mr Wright who has met the child, supports the Orders for the relocation of X. Mr Eylander of Counsel appeared for the Independent Children’s Lawyer.
I have had regard to all of the evidence, both oral and in affidavits and exhibits. A statement of fact represents a finding unless otherwise stated.

Background

The parties in this matter have been in litigation in this Court on and off for ten years. Their litigation is characterised by continual disputes, either party filing contraventions against each other, poor behaviour involving relatives and schools, some periods of being amicable but most of the time engaging in high conflict, each seeking sole parental and each party blaming the other for all of the conflict and each knowing that X was aware of the ongoing conflict.
In earlier Family Reports each of the parties described their relationship when they were together as turbulent and having many separations. The parties’ history went back to meeting at high school then meeting again in 2005. Within three months, the mother then relocated from New South Wales to live with the father in City B. The parties separated in City B finally in 2010.
Various Family Reports that have been commissioned in this matter and the Family Report Writer at the final trial was involved since 2003. It is fair to say that the Family Report Writer knows the child of this relationship, X, very well.
Each party sought a Domestic Violence order against the other at separation in 2010. Each of their applications were dismissed.
Orders in April 2012 provided for X to live primarily with the mother and spend time with the father for five nights a fortnight from after school Wednesday until 9am the following Sunday.
At separation the mother approached various institutions such as D Counselling to try and get help. The mother says she went to Child Safety with her concerns and they were not overly concerned about her belief that the father smoked cannabis. The mother also went to the Police and E Counselling. The mother says at that point that X was not coping at school, his grades were deteriorating he would not do his homework at her home, and she said he would “lose the plot.” The mother told the Report Writer that she and father have never co-parented respectfully. The mother acknowledged that she and the father had some periods where they were amicable and that at that time it became confusing for X and they needed to re-affirm for X that they were actually separated.
In 2017 the paternal grandfather passed away. The mother objected to the father taking X to the funeral of his paternal grandfather. The father said X was close to his Pop. The father took the child to New South Wales during his school holiday period to attend the funeral. The mother made phone calls and spoke to the father’s grieving and aged mother. When the mother realised that the child was with the grandmother, and the father was not present, the mother promptly called the police and had them go to the grandmother’s home to do a welfare check. So in addition to dealing with her grief, the paternal grandmother had the police at her door.
The mother then decided to file for a recovery order in this Court to have the Federal Police retrieve the child from the father and return him to her. Her application was dismissed. The father had stayed a few days extra to deal with the circumstances of his father’s death.
Following this incident, in 2017 the father’s mother was granted a protection order in New South Wales against the mother.
This period would be one of the lowest points demonstrating regrettable behaviour that typified the ongoing conflict. The distress caused to the paternal grandmother and the father by the mother remains a strong memory for the father occurring as it did at the time of his father’s death.
The mother then filed a Contravention Application for 64 contraventions that had allegedly occurred since 2011. The father filed an application that X live on an equal time basis and then to a final arrangement where X lived primarily with the father and spent alternate weekends with the mother. The mother filed another contravention application for a further 26 contraventions said to have occurred from September 2017 onwards. In response to the father’s proposal seeking more time with X in a week on week off arrangement, the mother sought orders to reduce X’s time with the father to one night a week and school holiday time.
When the father was interviewed in April 2018 for a Family Report, he had last spent time with X about five weeks earlier. The father reported that the mother had decided to revert to the old Court Orders of 2011 which were made when X was aged 4, and which stated that X was to spend the April school holidays with him only in odd numbered years. He then spent from April 27^th to before school on 2^nd May 2018 with X. When X was interviewed by the Family Report Writer about not spending any time at all with the father for the last five weeks, X said, “Mum wants me to stay with her. Mum said Dad did not want me for Easter. Dad said he wanted me.”
The mother telling X that the father, “doesn’t want to spend time with you” is very damaging for a child. I am deeply concerned that X was lead to believe that his father did not want to spend time with him when in fact the father was told by the mother that he could not have X for those holidays as they were her holidays.
Each of the parties has made allegations against the other to Child Protection. The mother made allegations of the father using cannabis and consuming alcohol to excess. The father denied the allegations. The father has expressed his dismay at the mother’s living conditions in which she lives in a large home with five bedrooms and two bathrooms, renovated (with the help of the father during a period that they were amicable) so that the mother could accommodate international students. The father said there are “heaps of people through the mother’s house.”
This ultimately led to trouble with the mother’s elder son F (from another relationship) who was caught up in a group of children who were expelled from high school for drug dealing. The father described the mother’s home as a half-way house for F and all his mates. Then F was home schooled. The father had concerns about X having to sleep in his mother’s room for a long period. He believed at the time there were up to ten additional people staying in the home, strangers as well as permanent occupants of the five bedroom two bathroom home, with one of those bathrooms being in the granny flat not occupied. Having international students stay is part of the mother’s income earning each year but has been a cause for concern for the father with X reporting to him how having that many people in the house created difficulties. The mother more recently commenced studies in at University. The mother also works as a professional and her income is supplemented by Centrelink.
The mother denied that she has had up to ten students at a time in her home, saying the maximum is three or four. She did though say that X had slept in her room due to the presence of students in 2015. She said she had hosted two Country G students who were supposed to sleep down stairs, they were upset and they went into X’s room.
When X was interviewed by the Family Report Writer he explained at the time that there was one homestay student and himself, and his mother at home. He said at most “there was ten students; me and F had to sleep in Mum’s room. Our rooms were occupied by students. I hated it. It was disgraceful. We had one bathroom, one being renovated and one bathroom to be built.” The child repeated this scenario at a subsequent interview.

The father is a tradesman who has been a fly in fly out worker with a primary industry company which he gave up after his father died and then obtained contractual work in City B. The mother draws income from her international students and has at least four separate properties. It seems at times they are used for various types of short term accommodation including Airbnb.
Following on from a contravention hearing lodged by the mother in May 2018, in which the Court found the father had contravened some orders and not others, interim Orders were made that the parties have equal shared parental responsibility and that X live in a week on week off arrangement. The Court was told of X’s wish to spend more time with his father. The living arrangements for X had been gradually changing over the years leading up to this from living primarily with the mother to spending more and more time with the father.
All of the litigation and ongoing high conflict has consumed X’s childhood. He was just 3 when parties separated and the litigation commenced. At the time of trial in March 2020, X was aged 13.
X has no memory of these parties living together. The parties’ behaviour in more recent years has been to fluctuate between periods of being amicable to then reverting to high conflict. It is unsurprising that X is having problems at school and acting out. His behaviour has resulted in sanctions from the school authorities and serious disruptions at school.
Much of the history of these parties and the consequences of their conflict is contained in the respective Family Reports prepared in this matter. I have had regard to those Family Reports. At the trial the Family Report Writer Ms H was required to give evidence and be cross examined.
I found her independent evidence including observations drawn from her years of involvement with these parties, to be extremely helpful in what is otherwise a sea of conflict and contradictions.
Having said that, for the most part I have found the father overall to be an accurate historian whose testimony can generally be relied upon. The mother’s testimony was tinged with her significant reluctance to give evidence against her own interests and her distortion of facts to bolster her version of events. The father described the mother as being untruthful and telling lies to him, X and the teachers. X is now old enough to have formed an opinion that his mother is not truthful with him.
At various times through the trial the mother would give evidence which would be challenged. The mother would only concede what she said was untruthful when shown a document disproving her statement. Thereafter the mother would disregard the fact that she had been proven to be untruthful, and would simply re-state the untruthful statement as if it were still true. This happened in relation to the mother’s statement that the father did not tell her he was going overseas. As a challenge to this evidence, the mother was shown an email to her from the father advising her of the trip. Nonetheless, later in the trial the mother put a question to the Family Report Writer on the basis of her untruthful statement.
The mother also gave evidence that was entirely implausible as happened in her unsatisfactory explanation as to why she deliberately held the chid over during the father’s week, in the last week of the term in late 2019. The mother said she had to keep the child with her that week as it was the only way to ensure that the child did his school assessments for the year, which the mother would have the Court believe happened in the final days of the school year. On further delving into this issue, the mother admitted that even though the child was with her, the child did not go to school each day that week. The mother said she thought he had a sickness, probably to do with a skin condition and she had to take him to the doctor. When the doctor’s records were produced, those records show that the mother took the child to the doctor because he was stressed and would not go to school. Only then did the mother admit that this is why she took him to the doctor. When asked if she informed the school of his absence, the mother said yes. This was not however recorded in the school records. When challenged about this, the mother then said that she went to the school in person, and that she took X with her when she went in to tell at least two teachers that he was too stressed to come to school. I consider the mother’s evidence that the child was willing to go with the mother into the school and go from classroom to classroom to explain that he was too stressed to go to school as highly implausible.
The truth is that the mother has been critical of the father for the days that the child has sometimes not been to school when with the father, however, she has failed to openly admit that she has just the same difficulty and that there is a problem for X in going to school for a range of reasons.
The mother gave evidence that she did not know the circumstances of her other son F being involved in drugs at high school. She said she didn’t really know the details, she just knew he had been given drugs. The school records which were subpoenaed confirmed that the mother was at a meeting with school authorities and specifically told about all of the circumstances and his involvement in selling drugs and why he was expelled.
On another topic, the mother put forth to the Court and the Family Report Writer that the father had failed to get X to school on 28 occasions in a particular time period. When queried as to the accuracy of that proposition and after hearing the mother’s explanations, her proposal and schedule was inaccurate. The mother had prepared a document which was incomplete, and had included days that the school records noted “late” as days when the child was absent from school. Overall I concluded that the mother has a tendency to be untruthful when it suits her purposes. Sadly, X has had enough experiences of his own that he now says that he cannot trust his mother. I am satisfied that X’s observations are correct.
In perusing the Family Reports it is clear that there have been days when X does not wish to attend school. There have been days when the mother has removed him early from school to prevent the father collecting him. There have been days when there have been arguments and conflict at school with X being given messages not to go on the bus to his father’s home contrary to the Orders. The school authorities have been given certain instructions by the mother which have created difficulties for the father. I am certain that the child’s school authorities have found themselves at the centre of dispute between the parents. The school has decided to separate the parties when they have each volunteered, only permitting one and not the other to volunteer at the same time.
There was conflict with the choice of high school between the parents when the decision had to be made. The mother’s two other sons from a previous relationship had attended City B High School. The father was concerned that the behavioural difficulties of the mother’s son F and his involvement in drugs at school and expelled, would be a poor legacy for X to be associated with. Evidence at the trial is that each of her other sons, J and F, spent very little time with their respective fathers over the years that they lived with the mother. Time with their fathers was random and rare.
After being expelled, F then did home schooling. In 2018 the father found out that F had left City B and was living with his father in New South Wales and attending school there. Each of J and F stopped living with the mother when they were at high school
The mother said F wanted to go and live with his father. The mother has blamed the father for the problems she experienced with F and J giving evidence that both her sons were exposed to Domestic Violence from the father, and that is the cause of their difficulties.
When X was interviewed about F leaving the family home in City B, he explained, “There was a lot of arguing between F and Mum. I switched off.” He explained to the Report Writer that their arguments sometimes escalated to physicality. X told the report writer Mum was sad when F left. X also told the Report Writer that he was sad F had left and he had not even had any phone contact with F since he left. He said, “I would like to talk to F. I don’t know why he left.”
As to his relationship with his other half-brother J, the Mother’s other son, X says he is estranged from J. He explained that J came to City B three years ago for Christmas, “he was here for two days and left.” X said J had changed his phone number and that “Mum does not call him or speak with J. J lives with his dad.”
There is no evidence to satisfy me that the problems experienced by the mother with F and J are caused by the father’s family violence towards the mother. The mother has had her own relationships with each of these sons, and each has left to live elsewhere. The mother has tried recently to rekindle her relationship with J and it was highly unsuccessful. Ms H also noted that there was a lack of openness in the mother’s commentary about why each of her sons stopped living with her. Ms H could see no correlation between the conduct of the father as described to her, and the mother’s assertion that each of her other sons suffered from exposure to family violence.
X has had a counsellor, Ms K, who has expressed concern at his plight in the midst of these warring parents. At a point the school considered that X was suffering Attention Deficit Hyperactivity Disorder. His psychologist diagnoses anxiety. The father reported that X was flagged as special needs and referred X to the school chaplain.
The evidence shows that the father has always been heavily involved in organising activities for X and believes that the mother tries to prevent him from being involved. He refers for example to paying for X to attend a sports camp. The father wrote on the child’s hand that he should not forget his gear on Friday, meaning the camping gear that he had. He reported that the mother attended school, collected X and said the father was not allowed to go. The mother provided the camping gear.
Similarly whilst X was on a school camp, the father volunteered to help on the Monday night of the camp given that the Monday night would have normally been a night X lived with him. He was advised by the school that he could not attend, as the mother had already volunteered. The mother explained that she had asked the child, “if he wanted me to volunteer. Then Mr Calcote (the father) sent a text demanding I don’t’ go. I asked the teacher to tell X why I’m not going. I said to X the school said I can’t go. The school said they needed males.” The mother said she involved the teacher as she was “concerned that X might think she was not telling the truth.”
This passive aggressive conduct by the mother has continued in a variety of ways over the years.
The mother reported in 2018 that X’s teacher was monitoring the lack of homework occurring. The mother said, “that the teacher recognized his stress and anxiety, that he shuts down and withdraws. She is trying different things. Ten days ago X was linked with the Chaplaincy program.” The mother reported that the teacher is aware that X is being bullied and that X and the other children ought not be together.
The mother reported that the father would not cooperate with her in having X attend a paediatrician saying that the father was concerned that X would be labelled as having ADHD. The mother was keen to have the assessment saying that X was unable to sit and listen at school and that he was disruptive at school. She explained how X was very unhappy at school, getting punished and detentions. The mother reported that X was running away from both houses and that X had recently had a meltdown over his homework at the father’s and run away. The mother said that she and the father could not co- parent in a safe and respectful way. I am not satisfied that the father has been obstructive or tried to prevent valid assessments.
There have been significant periods over the past two years when X has spent time with his father, when the Orders in place would have had him living with the mother. It has been the mother’s case that the father has held the child back from returning to her. It is the father’s case that X has remained with him through choice to spend more time with his father, and through enjoying their shared interests.
The Orders by Consent as to the living arrangements for X whilst living in City B reflect concessions by the mother that X has strongly stated that he wishes to live primarily with the father and the parties’ inability to co-parent.
The mother is also aware that X has strongly stated he wishes to relocate with the father to Town C and that he is excited at the prospect of activities and pursuits that are available to him if his father takes up the job opportunity as a tradesman. The mother has seen each of her other sons leave living with her at this time of their lives. The mother stated her fear to the Family Report Writer that if X left, he might not come back. That seemed to me to be her major concern. In the short term the mother was concerned that X might end up caring for the father when he had a back operation which was imminent at the time of trial. Those concerns were addressed with the arrangements made by the father for him to have assistance with household chores and someone to care for him. Also the child was to spend time with the mother whilst the father was hospitalised. I rely upon the evidence of the Family Report Writer in this respect.
As will be seen the evidence of the Family Report Writer is that X has more likely self-placed to spend more time with the father for a variety of validly based reasons. Their genuine enjoyment of each other’s company and their shared interests. As I said, at the time of trial X is aged 13.
The mother says she is intimidated by the father. I saw no evidence of intimidation by the father. I had the impression that when the mother did things like insinuate herself into the life of his grieving mother at the time of his father’s death creating trouble by requesting the police to attend, that the mother was apprehensive about the consequences of her own regrettable conduct. My impression from listening to the evidence was that the mother has at times behaved in a very provocative fashion. Whenever the father and mother’s evidence is in contest, in the absence of any independent evidence, I prefer the evidence of the father.

The Father’s proposal

Prior to the trial commencing, and bearing in mind their subsequent agreements as to significant issues, the father had filed his amended initiating application on 28 November 2019 in which he sets out the final orders then sought. He sought that the child will live with him in New South Wales and spend school holiday time with the mother in the holidays with the costs of travel to be shared. The father has since agreed to pay the full cost of travel.
The father sought an order for sole parental responsibility which is already agreed to.
The father’s proposal as per his amended initiating application was as follows:
a)The child shall relocate to New South Wales with the father and spend holidays with the mother in City B.
b)In the alternative, the child remains in City B area but the child shall live with the father most school nights, 10/4 which is what the roster was. This City B living arrangement is already agreed to.
c)If the child relocates, the child shall spend 4 weeks at Christmas Holidays, 1 week at Easter holidays, 2 weeks at June/July holidays and 1 week at September school holidays. The mother shall pay for the flight to City B and the father shall pay return airfare and copies sent to other parent 3 days prior to travel. The parent or person well known to the child must be available to drop and pick up the child from respective airport. The mother if in New South Wales may visit the child with prior agreement at least 3 days, unless emergency. The father at trial as volunteered to pay the full cost of travel for X to and from City B.
d)The father have sole parental responsibility for the child, including but not limited to:
i)The child’s education (both current and future);
ii)The child’s religious and cultural upbringing;
iii)The child’s health.
e)Each parent shall notify the other of an emergency without delay.
f)The mother cannot attend the child’s school unannounced other than parent/ teacher interviews.
g)Both parents refrain from any derogatory or negative discussion of other parent or parenting matters in the presence of the child.
h)The father shall enrol and inform the mother of any overseas travel, thirty (30) days prior to travel.

The Mother’s proposal

Prior to the trial, the mother relied on her amended response filed on 6 February 2020. The mother sought an order for sole parental responsibility and the child live with her however, at the trial she agreed to sole parental for the father and that the child live primarily with the father and each alternate weekend with her.
In terms of the child’s time with the father, the mother had sought orders that any time is in consideration of the father’s health condition, recovery from surgery and his ability to care for the child.
The mother’s proposal prior to the trial was per her amended response as follows:
a)That the mother have sole parental responsibility for the child.
b)That the child live with the mother in the City B region.
c)That the child spend time with the father, with access in consideration of his presenting health condition; the two (2) surgeries he is having in 2020; his long-term surgery recovery, and his carer needs and his carers availability.
d)The child is to attend L School.
e)The child is to attend M Medical Centre, Suburb N.
f)The child is to attend City B Dentist.
g)The father undertakes drug urinalysis testing.
h)The mother and the child attend family therapy at D Counselling.

The Independent Children’s Lawyer proposal

The Independent Children’s Lawyer sets out the orders he supports in his case outline also filed prior to the trial on 19 February 2020 and prior to the parties’ agreements.
The Independent Children’s Lawyer supports the father’s proposal for the child to live with him in the Region O of New South Wales and spend school holiday time with the mother with the costs of travel to be shared with Orders as follows:
a)Should the father and the child relocate from the City B area, then the mother will have time as agreed between the parties, but failing agreement as follows:
i)For half of each of the school holiday periods, being the first half in odd numbered years and the second half in even numbered years, which is not to commence any earlier than the Saturday after school concludes and not to end any later than the Sunday before school commences;
ii)In the alternative, for the end of term 1 and end of term 3 school holiday period in even number years and for the end of term 2 school holidays in odd number years;
iii)The mother and the father are to consult for organising travel arrangements for the child to spend time with the mother. The father is responsible for paying for the return flights to City B;
iv)The mother may spend time with the child for one weekend each term with 28 days’ notice to the father.

The Law

As I have explained to each of the parties, relocation cases are notoriously difficult matters for Judges to determine. Inevitably the decisions leaves one parent disappointed, if the parents are not able to agree about the living arrangements of a child and the Court is left to determine the best interests of a child. I have also explained to these parents that whilst they each have a right of freedom of movement, in parenting cases, that right has to give way to the consideration of the best interests of children.

The Family Law Act 1975 (“the Act”) prescribes how the Court is to approach this task and sets out a mandatory set of considerations as seen in section 60CC. The Act commences with section 60CC(2) being the primary two primary considerations[1] and then lists additional considerations under section 60CC(3)(a) through to (l) and concluding with 60CC(3)(m) being any other fact or circumstance that the court thinks is relevant.
[1] Noting 60CC(2A).
This application is governed by the principles set out in Part VII of the Family Law Act Commonwealth (the Act). In making parenting orders, the best interests of the child are the paramount consideration. The Family Law Act provides for two primary considerations, previously described by Brown J in Mazorski & Albright [2007] FamCA 520 as twin pillars. Her Honour stated:
“The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in section 60CC(1).”
These twin pillars are no longer to be given equal weight, with the effects of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 making significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary consideration under section 60CC(2), the Court is required to give greater weight to the second of those considerations; that is, protecting the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
When I consider the best interests of X, I will also consider the relevant additional considerations set out in section 60CC(3).
This application centres upon an application by the father to relocate. I have had to the authorities including Taylor & Barker [2007] FamCA 1246, McCall & Clarke (2009) FLC 93‑405, Goode & Goode [2006] FamCA 1346, A v A Relocation Approach (2000) FLC 93-035, B v B: Family Law Reform Act 1995 (1997) FLC 92-755, U v U (2002) FLC 93-112 and Lansa & Clovelly [2010] FamCA80.
I am also mindful of the comments of Justice Murphy in Lansa & Clovelly [2010] FamCA80. Lansa is a very useful decision which discusses the principles emerging from Full Court decisions in particular with regard to relocation cases. His Honour cited Full Court decisions including Sampson & Hartnett [2007] FamCA 1365, Rose and Rose [2009] FamCAFC 81 and to his Honour’s own first instance judgment in Pitken and Hendry [2008] FamCA 186 in which his Honour also examined the statutory requirements and principles emerging from the Full Court decisions then decided.
His Honour noted in Lansa that a “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. Justice Murphy stated that a relocation case falls to be determined like any other parenting case: The fact-finding (or value finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.

Family Report Writer, Ms H

Ms H provided in the most recent round of litigation, two Family Reports and an addendum. Overall she was very supportive of the father’s proposal to relocate X.
She described X as “a lovely child… a nice child though there are things underneath his happy veneer that have happened to him following on from ten years of high conflict, interspersed with times where dad has lived at mums property in his parents conflicted on again off again relationship.” This has caused much confusion for X.
Ms H described the bidirectional hostility between the parties rendering them unable to co-parent and in her opinion the equal shared living arrangement for the child is no longer viable.
Most of her report and evidence is discussed under the various section 60CC factors. Ms H said in her oral evidence that it has been difficult eliciting facts from both parents.
I have found the evidence of the Family Report Writer most helpful and that the opinions expressed by Ms H are in line with the factual evidence.

Best Interests

S. 60CC(2) The primary considerations are:

The benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

I am satisfied that the child would benefit from having a relationship with both parents though I am aware that there are difficulties in the child being able to do this in an arrangement where the child has been exposed to ongoing conflict for ten years. I am aware of the evidence that the child is strongly aligned with the father and maturity wise, at his age, he is very much wanting to spend more time and enjoy experiences that are on offer whilst living with the father.
I am satisfied that the future Orders need to accommodate the parties now proven inability to sustain a co-parenting arrangement. The ongoing frustration of each party about the conduct of the other has been palpable during the trial. I accept that it is no longer viable for X to live in an equal time arrangement which has essentially been conceded by the parents. Such an arrangement would be most damaging for X as referred to by Ms H.
The Family Report Writer stated that X did not wish to take sides, it is a matter of which parent he is less pained about.

S.60CC(3) The additional considerations are:

S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

I rely upon the evidence of the Family Report Writer who has set out at length the child’s views. Overwhelming the child has expressed a strong view to live with the father primarily and to relocate with the father.
In the first Family Report, the child expressed a preference to live with the father.[2] The child also indicated that he would prefer to be with the father if he was sick as, “Dad would take me to the doctor, mum would give me medicine from home.”[3] Further, the child stated if he had a problem, he “would more likely speak to the father.”[4] At paragraph 112 of the second Family Report, the Family Report Writer says “The writer has no doubt X is strongly aligned to Mr Calcote.”[5]
[2] Family Report filed 15 May 2020, paragraph 112.
[3] Family Report filed 15 May 2020, paragraph 99.
[4] Family Report filed 15 May 2020, paragraph 100.
[5] Family Report filed 7 November 2020.
The child initially expressed being supportive of week about in the first Family Report, however, in the second Family Report, the child described this arrangement as being frustrating.[6] The child further expressed his preference to live with the father, within the Town C area of the Region O when being interviewed for the third Family Report.[7]
[6] Family Report filed 7 November 2020, paragraph 91.
[7] Family Report filed 12 February 2020, paragraph 9.
As between the two parents, he is less pained living with his father. The child sees moving to New South Wales as the big out. His brothers got out and moved to New South Wales, he sees the same thing. [8] The Family Report Writer said the child sees his future with the father.
[8] Oral Evidence of the Family Report Writer, 20/2/20.
The Family Report said that the child is heavily aligned with the father and that this happens often on gender lines. Ms H said, “with X, he is like his father and he has a lot of common interests with his father.”
The Family Report writer was particularly impressed with the courage of X to say to her, whilst in the house of his mother who was present in the house that “I want to live with Dad.” Ms H said, “that takes courage from a child, I was impressed with that.”[9]
[9] Oral testimony, 20/2/20.
Given the child’s age and lived experiences, I place significant weight on the views expressed by X. I am satisfied that his views about the future in living with his father, and also relocating are validly and soundly based.

S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

Ms H the Report Writer has known this child for ten years. She described that whilst the child has a level of resilience, the child is not coping at all in handling the tension arising from the co-parenting problems between the mother and father.
His relationship with the mother has deteriorated to the point where the child is fearful that the mother will be untruthful with him. The example of the mother deliberately withholding X from spending the final week of school in 2019 with the father, (as he was to do pursuant to Orders), is an example of the mother’s dishonesty with X. The child has his own calendar with the dates and weeks he is to be with the father. Despite this and contrary to Orders, the mother announced to the child and informed the father, that X would not be returning to his father for his week. When the mother was asked how X reacted to her news that he would not be returning to his father’s for the week, she said he was angry and sad and went off to his room and shut the door. As referred to earlier, the child spent the week with the mother but she could not get him to go to school. The mother did not show any awareness of the consequences of her arbitrary decision upon X. She would not concede that he became stressed that week because he knew he was being held over. Ultimately by the Friday the mother took X back to school, but unbeknown to her, X did not go to school. He took himself off to the father’s home as he said he was in fear that the mother would again prevent him from going to his father. X knew obviously that the school holidays started at the conclusion of school, and said he was afraid that his mother would also prevent him from spending the first half of the holidays with the father.
I have a strong impression that X has out grown his mother’s strategies and he is very aware of her ability to prevent him from spending time with the father. As the Family Report Writer stated in her evidence, “X is in the middle of this friction.”
The Family Report Writer considered that even on the agreed arrangement of where the child would live in City B, being with the mother each alternate weekend starting Thursday and concluding Monday, that X will struggle with that as “he knows his father is doing stuff he would like to do. This is part of his alignment.” The Report Writer stated that X now has a trust issue with the mother. The child told the Family Report Writer that his mother wants him to do activities of her choosing, not his choosing and that this is a big issue for him. X told the Family Report Writer, “Activities I do with my dad are of my choosing.”
Ms H stated that this could be because they like (the father and X) doing the same things. He doesn’t have that choice with his mother.
Whilst the child wants to have a relationship with his mother, it seems at this stage of his life, the mother is struggling with her relationship with X hence her suggestion of having family therapy with him.
The child’s relationship with his father flows naturally, they have many interests in common, they enjoy each other’s company and it seems to me that they have a natural affinity. This is supported by the child’s conversations with the Family Report Writer of the activities he engages in with his father.

S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) To participate in making decisions about major, long term issues in relation to the child; (ii) To spend time with the child; and (iii) To communicate with the child.

I am satisfied that the each of the parties has tried to take every opportunity to be involved in the child’s life and be involved in decisions about his long term health issues and schooling issues and social life.
I am also satisfied that the father has always tried to spend more time with the child than provided for in the Orders and that this was based on the genuine views of the child and the child’s ongoing overt preference to be with his father.
The Report Writer has advised each of these parties that they need to lift their game and improve their communication, and make a much more concerted effort to reduce the conflict that the child is exposed to. I am not confident that this will happen given their open mistrust of each other.

S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

This has not been a significant issue at the trial. The father has been prepared to pay for a variety of extra-curricular activities.

S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The proposed relocation has advantages and disadvantages.
The advantages for the child will be that he will be living with his father which he sincerely wishes to do, and he will be moving to a location where he has been on holidays and thoroughly enjoyed the different life experiences on offer in regional Australia. The father explained that he and X have travelled to the Town C area during holidays. X has met and made friends of co-workers on a farm who he may be going to school with. He and those friends have engaged in working in farming activities during the school holidays including the joy of watching and experiencing farm life where it is proposed the father will obtain work.
This has given X a new focus in life and broadened his horizons from mechanical interests. I agree with the Family Report Writer that it is this type of out of school work and experience that could well lead to vocational opportunities for X. This is particularly important for X as he has had many difficulties at school, educationally, socially and behaviourally.
The Family Report Writer considered that moving to Town C will give X a clean slate. I am satisfied that the prospect of different schooling and community have much attraction for X. He has had difficulties at school, bullying for years and poor behaviour over the past years. He has struggled with his schooling, having some years not as bad as others. In relation to his school X said in 2018, “pretty bad. I don’t have a strong relationship at school. I have no back up friends. I was bullied at the end of last year. I was bullied by both girls and boys.”[10]
[10] 2018 Family Report.
The father has explained the links that X has already made in the Town C area and X’s enthusiasm for the life that he and the father could lead in New South Wales. I am satisfied that the father has thoroughly thought through from a child focused perspective the strengths for X arising from the relocation with an eye to the future life and employment of the child.
The opportunity to attend a school that has more of an agricultural focus which is not on offer at his current school, is another advantage. The father has various qualifications himself and in the work he intends taking on, many of those skills whether as a tradesman, farm manager, or just the opportunity to be hands on with animal breeding and running farms, all lay out a pathway for the future work life for X.
The Family Report Writer referred to the choices of schooling for X and that a lot of children do not know where their career path lies and that often the first career is a grounding for future careers. The father’s future plans in my view offer a pathway in schooling and work for X and at this point, X is really wanting to follow with his father and take on these new challenges.
The prospect of X remaining in City B and moving between the two households, albeit that he remains living primarily with his father, will likely lead to more of the same difficulties with X wanting to essentially vote with his feet and spend even some of his alternate weekends from Thursday to Monday, with the father. I am troubled that X may, as alluded to by the Family Report Writer, continue to self-place with the father and if necessary to do so, he will take matters into his own hands more and more.
The Family Report Writer on hearing of X’s reaction and obvious distress when told by his mother that he would not be returning to the father during the week the mother held him over in late 2019, stated that she is surprised that X didn’t “do a bolt.” Ms H said this could get to the point where it happens during the day and the father is home, but it could also happen at night when the mother was sleeping. Ms H said she is concerned about the dangerous aspects of X taking matters into his own hands.
In terms of his two brothers, Ms H told the Court that X is really keen to keep a relationship going with F and J. He is disappointed that they have moved away to live with their fathers on the Region P of New South Wales. On the father’s proposal to relocate there is scope for X to keep in physical touch with F and possibly J who live in New South Wales. X currently keeps in touch with F through online computer games, and is really sad that he has no contact with J. Ms H said X “desperately wants to spend time with his brothers.” I am satisfied that it much more likely that X will have opportunities and encouragement to see either or both of his brothers whilst living with his father, and particularly if they are living in New South Wales. My strong impression is that the mother’s relationship with her two other sons has been under great strain. Like the Family Report Writer, I do not accept that the mother’s problems with F and J was caused by the father, as suggested by the mother.
Under cross examination, the mother said she had a good relationship with F, but was shown documents where she described his behaviour as horrendous and him being very rude to her. There is little to no contact occurring now between the mother and J and F.
Overall I am satisfied that there are many positive impacts of the father’s proposal as compared to the proposal of the mother which is to maintain the status quo, with X living in City B with the father, and spending regular time with her. I am unable to see how X can continue to sustain the pressure and confusion of moving between these two houses every fortnight when he has been doing this for ten years under great pressure. As the Family Report Writer said, not just ten years, but ten years of high conflict. The parties have shown they have a love hate push pull relationship whilst the child remains living in City B moving regularly between the homes of each parent. The Family Report Writer says is very confusing and damaging for X. I am satisfied there are risks of continuing of exposure to conflict and stresses for X on the mother’s proposal which are largely removed by the proposal of the father.
Ms H explained the effect of parental conflict upon children and that a child’s brain will become absorbed with the conflict and it compromises their ability to learn. Ms H explained that a lot of children will go down that path and they are compromised with issues as between their mother and father, not their own. Ms H stated that there are a few children who knuckle down, hide in their room and do things and try and achieve within the conflict, however, the majority of children are compromised in their academic path and therefore their career options.

I am satisfied that the father’s proposal is more likely to relieve X from his ongoing worry and distraction living within the stressed and conflicted environment in which he would be living under the mother’s proposals.
My observation of the parties is that there is no sign that there a calmer times ahead whilst ever they continue to co-parent with the child moving from one home to another in City B, effectively moving every week. I have no doubt that their ongoing disputes involving most aspects of X’s life including medical care, doctors, dentists and dental treatment, schools, and extra curricula activities will all continue on the mother’s proposal. That will mean that X will be left to try and navigate his life through the cloud of conflict in which he lives in regularly and frequently moving from one parent to another in City B.
The impact of X being able to live with his father and also having the father and mother living with significant geographical distance between them will alleviate the stress that surrounds his day to day life. There are educational advantages in X being able to start schooling with a clean slate and with a new focus on agricultural learning which he is now very enthusiastic about. Ms H described X as a child soon to be young man, who really likes talking about his favourite topics with great enthusiasm, such as tracks to ride on. She thought this was happening with his exposure to the rural life he experienced in New South Wales which he shared with great enthusiasm with the Family Report Writer discussing his holidays with the father in the past in New South Wales.

S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

The cost of airfares on the father’s proposal is a significant issue. The father has offered to pay the cost of the return travel from New South Wales to Queensland for X. I am satisfied that if the father says he will pay the costs, that he will do so. He has the capacity to do so. He has been able to afford holidays each year and advises the Court that likewise, he will budget to cover the cost of travel. The father’s employment history, whether as a tradesman or otherwise sounds viable and will be able to afford the travel costs for X. I note that he has kept himself in work whether with primary industry or through contractual work. He has a varied work experience and appears highly motivated to use his work experience to secure either the employment offered to him at the farm or other work. Ms H suggested that the father values money, and if he was to pay the costs of travel for X to have contact with his mother that would seem to him like money well spent. She had no doubt that the father would ensure that the travel costs were paid. I agree.
The other issue involved in the child spending holiday time with the mother is that at his age he is likely to want to, as he has done with the father, continue to do some holiday work. The Family Report Writer said a lot of parents struggle with this issue when they are considering the holiday time of high school students. This is because casual work for children is generally a positive experience and can lay the foundation for good work habits and responsibility. Turning down shifts during the holidays can sometimes mean consequences for the child’s employment or the child. She encourages these parents to consider how else they can facilitate a relationship. I accept that this issue will arise whether X lives and works in City B or New South Wales. It is a topic about which each parent has to place X’s interests first whilst coming up with a plan that takes into account the competing interests.
The issue of X continuing to agree to go to his mother’s on holidays was canvassed at the trial, given his general reluctance to spend a lot of time with the mother for the reasons explained in this judgment. The Family Report Writer thought it was important that the Orders were explained to the child through the ICL, with a message conveyed to X that the rules were he had to have holidays with his mother. Ms H also conceded that as each year went by, the competing interests of X at aged 14, 15 and upwards would include school camps and other activities offered by schools during the holidays. Again she urged the parties to take account of his interests and work out plans focusing on his best interests into the future, taking account of his age and interests and development.
One of the ways to compensate for any holiday time which might be foregone due to other interests of X, included the suggestion by the ICL that the mother should travel to Town C or wherever the child was living to spend time with X in his new environment. There were benefits for the mother in doing this. Not only to spend time with X, but as referred to by Ms H, to understand the environment that he now lived in and see how his life has changed and to experience part of that with him. Ms H was informed of the mother’s attitude towards travelling down to see X which was that she thought she and the father would have difficulty making any such arrangements, there would be problems and it wouldn’t happen.
The father offered to take X to the Sydney airport or elsewhere to meet up with the mother if she travelled down to Sydney. Ms H encouraged the mother to rethink her attitude to interstate travel to see X and also, to assist her to know his environment and have more topics about which she could talk to him about when they have telephone or FaceTime communication.
Similarly Ms H suggested that the mother access the school newsletters on line and know what is going on in X’s school so that she can work out how to show genuine interest in activities happening in his world instead of asking routine questions as to how he is going, with no particular focus or understanding.
My impression is that wherever X lives, the mother is going to have to avail herself of the professional tips given to her by the Family Report Writer as X is approaching an age where he has an acute understanding of the differences between his parents. For their own reasons, both of his brothers chose not to live with the mother once they reached high school. The mother therefore needs to upskill and work out a child focused approach to being able to engage with her now teenage son who will soon be a young man. That is for the mother to do, no one else can do it for her.

S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

In addition to what I have said elsewhere in these reasons, I am satisfied that broadly, each party can provide for the basic necessities for the child, though I have concerns about aspects of the mother’s parenting. What the mother has asked of X in the past in having him live in home accommodation with so many transient house guests coming and going was not child focused. Whilst the mother said he loved all the visitors that is not borne out by the child’s evidence. Clearly he was not happy as seen in his interviews with the Family Report Writer when the mother has had up to ten other guests staying with X describing the conditions as disgusting. I consider she placed X’s interests and emotional wellbeing second to her own business interests and unfortunately the mother has not been candid about what was happening in her household with the Court or the father.
I am also concerned at the mother’s inability to appreciate how devastating her decision was to prevent X from spending a week with his father late last year. The mother appears to be losing touch with the child’s age and understanding. X is no longer a young child under 6 or 7 whose arrangements are decided solely by a parent. X knows the acrimony, he knows that his parents each pull him in different directions. The mother’s conduct in telling X in Easter 2018 that his father did not want him for Easter, was unkind and untruthful. It is an example of the mother’s inability to truly understand the hurt and effect of her behaviour on X. I do therefore have doubts about the mother’s ability to provide for X’s emotional wellbeing.
As for the father, my impression is that he has understood X’s strengths and weaknesses, likes and dislikes. Whilst the father and mother are locked in their own struggles, the father does not project his own personal wants and needs over that of the child. He reads the child very well. The father and child are entirely on the same wave length in so many matters and interests. The father is open to allowing X to enjoy a range of experiences according to his choices. He has interpreted accurately how X is feeling through much of the turmoil that has occurred.
The Family Report Writer considered that whilst the optimum arrangement which would enable X to relocate and still have a meaningful relationship with his mother, would be contact four times a year in each holiday period. Ms H also stated that it depended on affordability. In this context Ms H encouraged the mother in those circumstances to travel to New South Wales for long weekends as referred to elsewhere in these reasons.
Throughout the litigation there have been allegations of the mother about the father’s use of cannabis and abuse of alcohol. Each of the parties have engaged in regular testing for drug use and each has returned negative tests. I am satisfied that neither the mother or the father has a drug dependency. I am satisfied that drugs have not impaired either parties’ ability to properly and safely care for the child. There have been times where each of the parties have not been able to afford drug tests including when the father had a period of hospitalisation and no work. I accept that this is so.
As to the father’s consumption of cigarettes, the father is aware that X is worried about the health risks arising from his smoking. The Family Report Writer has succinctly stated that the decision to cease smoking lies solely with the father.
As for the allegations of the father abusing alcohol, I am not satisfied that there is evidence to support this allegation. I do not intend to make orders that the father not drink alcohol over the legal driving limit. The Full Court have made it clear that this Order is essentially unenforceable. Further, I am not satisfied that any such order is appropriate or necessary.

S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

Having heard all of the evidence, I am satisfied that X has reached the stage where he has chosen to self-place with the father, as indicated by Ms H. The mother needs to appreciate this and learn strategies to engage with X. As the Family Report Writer stated, the mother will need to build a bridge so that she can maintain a relationship with X. The Report Writer advised the mother that one of the big differences between X and perhaps J and F was that X was appalled at J’s behaviour toward the mother and that is because he cares about his mother and does want a relationship with his mother. The Family Report Writer recommended and explained the process of family therapy to the mother which is used to rebuild shattered relationships.

S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

Most of this topic has already been canvassed. I would add that the father has shown that he will put this child’s interests first and foremost. The mother does not have a good history with parenting teenage boys, with both of her other sons leaving the mother’s home during high school. I am satisfied that the mother was less than candid in her description of her completely fractured relationship with J. Ms H described the mother’s attempts to re-engage with her son, as sadly a monumental failure.
During the trial the mother would not articulate her proposal for time with the child in the event the child relocated. Instead, the mother wanted orders for the child to be assessed, and said than only then would she consider the father’s time with the child. This was despite this relocation being discussed at length during the litigation. Ultimately the mother indicated that she did not want large gaps in the time in between holidays, as discussed with Ms H during the trial.
Ms H said that each of the parties in this matter has deliberately distorted each other’s comments over the years during this litigation which was appalling. Also the Family Report Writer said that each of them had to lift their game in terms of communication with each other.
To the extent that these two parents who love this child dearly have managed to keep alive their mistrust of each other for ten years which the Family Report writer described as, “hasn’t been pretty at any point in time” and during which “both of you deliberately misinterpret the others comments” saying “this is atrocious behaviour,” each of the parents have not demonstrated an appropriate attitude towards parenting.

S.60CC(3)(j) Any family violence involving the child or a member of the child’s family

There are no orders in place. The parties took out orders against each other ten years ago and each application was dismissed.
The mother however has had a Protection Order against her placed on by the paternal grandmother through the New South Wales legislation.

S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

After ten years of litigation, it is imperative that this litigation come to an end and final orders are made.
The child is of an age and understanding, where if he is to have any peace in what remains of his childhood, his parent’s time in this Court must come to an end.

S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

Evaluation of the competing proposals

The parties have agreed to the father having parental responsibility.
As is clear from these reasons two important issues in relation to the proposed relocation are the views of the child given he is now 13, and his relationship with each of the parents.
X has expressed strong views that he wishes to live with his father and that he wishes to relocate with his father. These views are supported by the Independent Children’s Lawyer and the Family Report Writer. X’s views are expressed in the context of having been raised as a child living between two parents whose turbulent relationship prior to separation, has for the most part continued ten years post separation. X is strongly aligned with his father and they have a deep connection with many interests shared. X has a chance at a life free of the stress and conflict that has plagued his life so far as set out in the proposal for the father.
The mother has struggled to maintain a relationship with X as a teenager that is fulfilling for X. X has tried to stay out of the conflict as he loves both parents, but he sees life with his father as the life and future for himself. The father has solid plans for employment, living arrangements and education for X.
X said that he is more likely to approach his father with a problem saying, “if I was being bullied Dad would talk to the teacher and to the student. If I had a male problem dad would understand. If I have a problem with my body, Dad would know if I needed to see a doctor.” [11]
[11] Paragraph 100, 2018 Family Report.
Overall X has a much stronger and healthier relationship with his father. The plans of the father to relocate hold much excitement and the prospect of a new beginning for X in so many ways.
Overall I am satisfied that the proposal of the father has significant advantages over that of the mother. I am satisfied that the father will do his level best to ensure that X returns home to the mother for holidays, noting the caveats that Ms H has foreshadowed into the future. As best is possible I am satisfied that the father’s proposal will enable X to have a meaningful relationship with his mother. I am sure that the father’s proposal has a chance to help turn around X’s dwindling relationship with his mother, as he will be living each day in a happier less stressed environment with his father and hopefully this will make the prospect of time with his mother who X really cares for, much more positive.
In all of the circumstances having considered all of the evidence and the relevant section 60CC factors and noting the support of the ICL for the child to be permitted to relocate with the father, and having weighed up the advantages and disadvantages of each of the proposals, I am satisfied that the child’s best interests lie in the proposal of the father. I intend to make Orders in line with the proposal of the father and the ICL, that the child live with the father in New South Wales and that the father be permitted to relocate the child’s residence from City B forthwith or at a time at his sole discretion.
Until the child leaves, the agreed Orders of the child living in City B with the father and spending time with the mother from Thursday to Monday will be made, along with the other ancillary orders.
Noting that the conflict between the parties has played out at the school X attends, I intend to make orders preventing the mother from giving directions to X’s school or extra-curricular authorities. These decisions are for the father noting the mother has withheld the child from school deliberately and from the father and I intend to make orders preventing the mother from doing this into the future. Similarly, it is not appropriate for the mother to simply turn up at his school and start giving directions about who is collecting the child or anything else. I will make orders accordingly to prevent the possibility of any future conflict playing out in X’s school life.
It has been recommended that the mother make arrangements to travel to New South Wales and get to know X’s new world. Whilst the mother has indicated that this would be too hard, and that she will not be doing it, I remain hopeful that the mother will change her mind after hearing the benefits that could be obtained from her having a firsthand experience of seeing X in his new environment. Therefore I will make an Order that the mother is to give notice if she intends to travel to New South Wales and spend time with X to enable this to occur.

I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Willis AM

Associate:

Date: 6 July 2020

[2020] FCCA 1829

6 July 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Remedies

Jurisdiction

Procedural Fairness