Carne and Carne - [2008] FMCAfam 1245

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARNE & CARNE

[2008] FMCAfam 1245

FAMILY LAW – Parenting orders – relocation – Wife seeking to relocate to Sydney (where parties originally from) with the parties two children aged 8 and nearly 5 – Husband seeks orders the children remain in Melbourne – children’s wishes – meaningful relationship with both parents – ordered children remain living in Melbourne with the Wife.

Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA

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

Applicant:

MR CARNE

Respondent:

MS CARNE

File Number:

MLC 6755 of 2008

Judgment of:

Bender FM

Hearing dates:

17 & 18 November 2008

Date of Last Submission:

18 November 2008

Delivered at:

Melbourne

Delivered on:

12 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr Wood

Solicitors for the Applicant:

CE Family Lawyers

Counsel for the Respondent:

Ms Stewart

Solicitors for the Respondent:

Lander & Rogers

ORDERS

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the children [Y] born in 2000 and [Z] born in 2004 (“the children”).
The children live with the Wife.
The Wife be restrained from moving the place of residence of the children from the Melbourne Metropolitan area, unless with the written consent of the parties.
The children spend time and communicate with the Husband as follows:
(a)each alternate weekend from after school Friday to before school Monday;
(b)from after school Wednesday to before school Thursday;
(c)for half of all school holidays as agreed between the parties; and
(d)as otherwise agreed between the parties.
The living arrangements specified in paragraphs 3 and 5 be suspended on special days and the children spend time with each of their parents by agreement. Failing agreement, the children spend time with each of their parents as follows:
(a)the children spend time with the Wife from 9.30am to 5.00pm on Mother’s Day.
(b)the children spend time with the Husband from 9.30am to 5.00pm on Father’s Day.
(c)the children spend time with the parent they are not with on the children’s birthdays (if they fall on a school day) from the conclusion of school or 3.30 pm until 5.30 pm on the same day.
(d)
the children spend time with the parent they are not with on the children’s birthdays (if they fall on a non-school day) from

9.30 am
until 2.30 pm on the same day.
(e)the children spend time with the Husband on his birthday (if it falls on a school day) from the conclusion of school or 3.30 pm until the commencement of school or 9.30 am on the next day.
(f)the children spend time with the Wife on her birthday (if it falls on a school day) from the conclusion of school or 3.30 pm until the commencement of school or 9.30 am on the next day.
(g)the children spend time with the Husband on his birthday (if it falls on a non-school day) from 9.30 am until 5.00 pm on the same day.
(h)the children spend time with the Wife on her birthday (if it falls on a non-school day) from 9.30 am until 5.00 pm on the same day.
(i)the children spend time with the Wife and the Husband on Christmas Eve and Christmas Day on an alternating yearly basis as follows:
(i)
with the Husband from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day and with the Wife from

12.00 noon Christmas Day until 12.00 noon on Boxing Day in 2008 and each alternate year thereafter; and
(ii)
with the Wife from 12.00 noon on Christmas Eve until

12.00 noon
on Christmas Day and with the Husband from 12.00 noon Christmas Day until 12.00 noon on Boxing Day in 2009 and each alternate year thereafter.
The children be at liberty to communicate with the parent they are not with at such reasonable times as the children request and the parent they are with facilitate that communication.
The Husband and the Wife be entitled to take the children on a holiday for periods not exceeding three weeks in each year subject to the majority of the holiday taking place within the school holiday periods.
The Husband and the Wife provide each other with at least 30 days prior written notice of their intention to take the children on a holiday pursuant to paragraph 8 and provide the other parent with the confirmed itinerary including contact details no less than 21 days prior to the proposed departure date.
Each parent notify the other parent immediately of any serious illness, injury or other medical emergency affecting the children and provide appropriate details to the other parent of any emergency medical or other treatment obtained including details of relevant medical practitioners.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 6755 of 2008

MR CARNE

Applicant

And

MS CARNE

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings, the Husband initially sought property orders and orders that the parties’ children [Y] born in 2000 and [Z] born in 2004 (“the children”) live week about with each of their parents in Melbourne.
At the commencement of the hearing of the matter, the parties resolved property issues and final orders were made by consent in the terms of the Minutes that were handed up to the Court.
The Husband at the commencement of the matter amended his application in relation to the orders he sought for the arrangements for the children to reflect the recommendations contained in the Family Report of Dr Jennifer Neoh. He seeks orders that the children live with the Wife and spend time with him each alternate weekend from Friday evening to Monday morning and each Wednesday afternoon to Thursday morning in Melbourne.
The Wife seeks to be permitted to relocate with the children to Sydney and that the children spend time with the Husband each third weekend, half term holidays and four weeks in the long summer vacation.
The Husband also applied to have the children live with him in the event the Wife was unsuccessful in her application and chose to relocate herself. At the commencement of the hearing, I was advised that if the Wife was unsuccessful in her application, she would not relocate so this aspect of the Husband’s application did not need to be explored.

Background

The Husband was born in 1963 and is 45 years of age. He is employed as a [occupation omitted] of [W] Consulting.
The Wife was born in 1967 and is 41 years of age. She is engaged in full-time home duties.
Both parties are from Sydney where they met and married. They owned a property in [M], a suburb of Sydney and the children were both born in Sydney.
In January 2005, the parties and the children moved to Melbourne to enable the Husband to pursue better employment opportunities as a Manager with [C]. In 2006, the parties sold the [M] property and purchased a home in [X] [suburb in Melbourne omitted].
In May 2007, the Husband commenced a relationship with Ms T. The Wife discovered the affair in August 2007. The parties attempted marriage counselling, but this was unsuccessful. They separated under the one roof in October 2007 and the Husband left the former matrimonial home in January 2008.
In February 2008, the Husband resigned from his position with [C] and commenced employment as [occupation omitted] of [W] Consulting on a salary package of $170,000.00 per annum. This was done with the full knowledge and encouragement of the Wife.
In March 2008, Ms T commenced co-habitation with the Husband.
To their credit, the parties put in place arrangements for the children to spend regular time with the Husband, which by May 2008, was each alternate weekend from Friday to Monday and on Tuesday night in week one, and Thursday night in week two. In June 2008, this arrangement was altered so that the children spent overnight each Wednesday with the Husband.
From the time the parties separated, the Wife informed the Husband of her wish to “return home” to Sydney with the children.
In the face of her considerable hurt and disappointment at the breakdown of the marriage, the Wife has done her best to shield the children from her pain and has encouraged the children in their relationship with their Father and Ms T.
The Husband has provided substantial ongoing financial support to the Wife since separation, including the payment of the mortgage on the former matrimonial home, child support, repairs to the former matrimonial home and for airfares for the Wife to visit her father in Sydney.

The Husband’s proposals

The Husband seeks orders that the children live with the Wife and spend time with him each alternate weekend from after school Friday to before school Monday, and overnight every Wednesday. He seeks that this take place in Melbourne.
The Husband readily conceded that the Wife understandably wants to return to live in Sydney, and that her reasons for doing so are not an endeavour to prevent him from having a meaningful relationship with the children.
However, the Husband is strongly of the belief that if the Wife and the children were to relocate to Sydney, his relationship with the children would be negatively impacted upon as they would not be able to have the regular weekly contact that they do at the moment. Nor could he be involved in their school and sporting lives, something that he is able to do now, especially with [Y].
When cross-examined about his ability to move back to Sydney, it was the Husband’s evidence that he would not be able to get a comparable position in Sydney as the economy in New South Wales is deeply depressed. It was his evidence that his former employer in New South Wales was going into liquidation. He has no formal qualifications, having gone into the [omitted] business as a young man working as a [omitted] with his father, and he did not believe he had a skill set that would easily allow him to assume any form of alternate managerial or senior level employment.
It was the Husband’s evidence that his current position cannot be transferred to Sydney as it predominantly involves the management of the [omitted] in fifteen large Melbourne office blocks. This requires him to attend most of these buildings on a weekly basis.
The Husband confirmed that he and the Wife had been able to

co-parent cooperatively since separation.

Ms T

Ms T confirmed that she regarded her relationship with the Husband as a long term one, and that she was committed to it and to the children.
She is employed as an [occupation omitted] with [W] Consulting.
When cross-examined as to whether she would be in a position to move to Sydney with the Husband in the event the Wife was permitted to relocate to Sydney and he decided to follow her up there, she said that it would have to be economically viable. It was her evidence that all her current contacts are in Melbourne, that it had taken her a long time to build up those contacts, her business and expertise, and she would lose all of that if she were to move.

The Wife’s Proposals

It is the Wife’s proposal that she be permitted to relocate with the children back to Sydney and she proposes to live in rental accommodation in the [suburb omitted] area.
It is her proposal that the children spend time with the Husband every third weekend, half the term holidays, four weeks in the long summer vacation and whenever the Husband is able to travel to Sydney himself.
The Wife wants to return to Sydney, which she considers to be her home. Her family and oldest friends are in Sydney, and she sees them as her true support network. She told the Husband when they separated that she would be seeking to be allowed to move back to Sydney with the children.
In addition, her father is seriously ill and she is keen to be close to him so that she can offer support and maximise the time that she can have with him.
The Wife conceded that there had been a deterioration in her and the Husband’s relationship after they moved to Melbourne from Sydney. The discovery that he was having an affair, which occurred when she found articles of clothing belonging to Ms T in her home after she had been away for a weekend, was devastating as was the realisation that there was no possibility that the marriage could be saved.
To her complete credit, she has not let her hurt and disappointment stand in the way of ensuring that the boys have a proper and ongoing relationship with the Husband. Both parties have managed to co-parent their children in a co-operative and positive manner.
The Wife is of the belief that both the boys have adjusted well to their parents’ separation and she is confident that both children will easily adjust to moving to Sydney.
The Wife acknowledges that the boys have a close and loving relationship with their Father. She is of the belief that this relationship can be preserved by the proposals she makes for the boys to spend time with their Father every three weeks and for a considerable part of the holidays.
She expressed an opinion that it is just as important for the children to have a relationship with her extended family in Sydney as it is for them to have a relationship with their Father.
She conceded that if the court were to make orders that the children were to remain living in Melbourne that she would cope with such an order and would get on with living her life. However, to her mind, the way to true happiness lies in her being able to return to Sydney.

Dr Jennifer Neoh

Dr Neoh is a clinical psychologist who prepared a detailed Family Report in which she recommended that the children’s best interests would be met by remaining in Melbourne and living the majority of time with their Mother.
Dr Neoh was particularly concerned about the impact of the separation on [Y] and his reaction to a suggested move to Sydney away from his Father.
Dr Neoh described [Y] as a sensitive child with a tendency to internalise his feelings.
In her Report, Dr Neoh states:
“Strong themes in [Y]’s interviews indicated that he has been very unsettled and worried about his mother’s proposal. [Y]’s stricken face when discussing how the move might affect him was very telling. His tremulous comments that ‘I would miss dad even more (than he now does)’ and ‘when I think of going to Sydney, I feel sad’. His bleak face when he raised his worry that his mother might leave for Sydney without him seemed to emphasise the dilemma of his position.”
In relation to how [Y] felt about the parental separation, Dr Neoh states in her Report:
“[Y] cried slowly when telling me how upset he had been to learn of his parent’s separation and there were obvious symptoms of grief and loss around his discussions of it now.”
Dr Neoh also noted:
“[Y] impressed as a child who is likely to be in tune with his parents’ emotional status, and this seemed to be a component of why he might internalise his feelings.”
Dr Neoh was quite critical of the Wife for not picking up on [Y]’s distress about the separation of his parents. She noted in the Report that Ms Carne had stated that [Y] had seemed to show very little reaction or difficulty in adjusting to his parents’ separation. Dr Neoh was most concerned that even having received the Report, the Wife in cross-examination was still of the view that [Y] had adjusted to the separation of his parents.
When speaking to Dr Neoh, the Wife told Dr Neoh that she considered that the children would adjust to the move with relative ease. The Wife stated that [Y] was at an age where he could make new friends and transfer his alliegances easily. Dr Neoh did not share the Wife’s optimism.
Dr Neoh was also concerned that as the Wife had not been able to pick up on [Y]’s distress at the separation of his parents, then if he had adjustment problems following the relocation, she was less likely to pick up on those as well.
When questioned as to what she meant by ‘adjustment problems’,

Dr Neoh said:
“[Y] stated to me that he doesn’t want to go, that he worries about it. It’s his biggest concern, and children who have an aversion to something – there’s generally some correlation about how quickly and how well they adjust to something. If they want to do it, they are going to adjust much quicker. I would suggest that [Y]’s presentation suggests that he’s going to have a lot of adjustment problems to it because he doesn’t want to go, and it concerns me that Ms Carne hasn’t been able to see those problems now, so it suggests a prediction would be that she is unlikely to see them in the future.”
Dr Neoh, in her evidence, also indicated there might be some developmental issues that would occur for [Y] if he were to move to Sydney with his Mother. When asked to expand on this, Dr Neoh said:
“I think the risks are that when a child is worried about something or not coping, all their energy tends to go into those sort of problems and it detracts from their developmental movement, so the longer he’s upset and the longer he takes to adjust, the more risks there are for him.”
When asked what sort of risks and developmental delays she was referring to, Dr Neoh said:
“It’s just about the energy, the redirection of energy. He strikes me as a child who is doing very well at school, really enjoys his school community, he feels very confident there. All that would be displaced by a move to Sydney. He doesn’t want to go, he’s going to be upset about that, may not tell anyone, so all that sort of worry is internalised. He may not cope at school, he may not try to make friends, there may be a loss of confidence, and during that time where he makes that adjustment there’s going to be losses in his life and loss of energy to put into his development.”
Dr Neoh was of the view that contributing to [Y]’s internalisation of his feelings was a need to protect his Mother, as he was concerned he may hurt her.
Dr Neoh was asked whether the Wife’s desire to relocate was such that she would push issues like [Y]’s stress into the background. Dr Neoh’s evidence was:
“I think it’s more a case of a psychological filter. That is, you want to see something one way, you might choose to see all the evidence going that way and might choose to ignore and be less likely to pick up on a child like [Y] who is likely to internalise problems and not show them overtly, you might be inclined to just look at the surface of it rather than look a little bit deeper.”
In the summary and recommendations of the Report prepared by

Dr Neoh, she compliments the Wife on controlling her less positive impulses and feelings in order to protect the children and for her facilitating the children’s relationship not only with Mr Carne, but with Ms T. As she writes:
“It is not difficult to recognise that many people in a similar situation would not behave with the grace and tolerance shown by Ms Carne.”
However, Dr Neoh goes on to say:
“My psychological assessment of Ms Carne suggested that her concerns over her father and her own feelings of displacement, quite understandable in the circumstances, might be obscuring her insight into the children’s best interests. She seemed to take an optimistic view that conjoined the children’s interests with hers and seemed confident that they would adjust to the move easily. The children’s presentation did not engender me with the same confidence.”
A great deal of the evidence that was presented by Dr Neoh related to [Y]. This in no way is a reflection that [Z] is of any less importance, but his parents and Dr Neoh all noted that [Z]’s is a much stronger and robust personality, and that if he were distressed or had any issues, everyone would know of it, and they would be dealt with. Dr Neoh described him as ‘a squeaky wheel’ who knows exactly what he wants and is not easily distracted from pursuing those wants.
Dr Neoh noted in her Report:
“Both children have a profound attachment to their Father and that their relationship with him is very important to them.”

Dr Neoh further noted:
“It is difficult to envisage that, at their age, less regular time with their father, than they currently enjoy, is not going to have an affect on that relationship. The reduction in time with their father, in addition to the obvious decrease in Mr Carne’s involvement in their daily lives and activities that is likely to result from having one’s parent living in a different state, would be expected to create some distance in that relationship, where there is now none.”
Dr Neoh agreed with the Wife’s Counsel that if the Mother was happy and content, she would be better able to parent the children. Dr Neoh, however, had great confidence that if not permitted to relocate, the Mother would move on in life and continue to properly care for her children.
Dr Neoh was asked about the children being able to communicate with the Father by the use of technology, including webcam, to which

Dr Neoh responded:
“I’ve got to admit, I’ve never seen it work well for children, ever. Maybe there is new technology, but that time delay sort of factor really takes away a lot of the behavioural stuff for children. It makes communication so important – I’ve never seen it work well ever.”

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
It is established law that in relocation cases the best interests of the children remain the paramount consideration. However, that is not the sole consideration and a parent’s wish to relocate and rights of freedom of movement are also very relevant considerations.
In this case, both parents agree that they should have equal shared parental responsibility for the children. The cooperative co-parenting that the parents have achieved since separation confirms that such an order should be made. However, there are important consequences which flow from such an order.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Whilst the Husband’s initial application was for an order that the children spend week about with each parent, upon reading Dr Neoh’s Report, he amended that application to one where the children would spend nine nights a fortnight with the Mother and five nights a fortnight with him. If the Wife is permitted to relocate, then such an order would not be feasible.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(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 or 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.
The Husband is seeking orders that he spend significant and substantial time with the children, and it is the Wife’s fallback position that if she is unsuccessful in her application to relocate to Sydney, then orders in those terms be made. If the Wife were permitted to relocate to Sydney, whilst the children would spend substantial holiday time with the Husband, his ability to be involved in the children’s daily routine, including school and sporting activities as well as many special occasions, would be severely restricted.
In determining what is in the best interests of the children, the court must have reference to the matters set out in ss.60cc (2) and (3) of the Act. Each matter contained in the subsections must be considered and assessed in the context of each of the party’s proposals and behaviours and a determination made of which party’s proposals best meet the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

There is no issue whatsoever that these children are in need of protection from physical or psychological harm as a result of being subjected to abuse, neglect or family violence.
Both children currently have a meaningful relationship with both their parents. However, despite the Wife’s belief to the contrary, in my view there is no doubt that the children’s relationship with the Husband will be negatively impacted upon in the event that they are allowed to relocate to Sydney. He will not be seeing the children on the regular weekly basis he is now, nor will he be able to be involved in their school lives, kindergarten lives, sporting and other extra-curricular activities with any degree of regularity or spontaneity.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account, and I will consider each of those in turn.

Section 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

[Y] is quite clear that he doesn’t want to move to Sydney and be away from his Father.
To a lesser degree, [Y] is also concerned about leaving his school and his friends as he now, unlike the Wife, considers Melbourne to be his home.
Whilst only eight years of age, [Y]’s views are strongly held and should be given appropriate weight by the court.
[Z] is only four and a half years of age, and has expressed no views.

Section 60cc 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

Both parents agree that the children have a close and loving relationship with both of them.
There was also agreement between the parties that the children’s relationship with the Husband has in fact strengthened and grown since separation as he has spent more one-on-one time with them and been more actively involved in their care.
The children have a developing relationship with the Husband’s new partner, Ms T, and they interact comfortably and well with her. It is to the Wife’s credit that she has encouraged the children in this relationship.
The Wife’s family, who live in Sydney, are reported by the Wife to have a close and loving relationship with the children as well. Whilst not accepting the Wife’s contention that these relationships are as important as the children’s relationships with their Father, it is accepted that they do have a good relationship with their maternal family, and that this has been maintained in the nearly four years that the children have been living in Melbourne. There is no reason to believe that it will not continue to be maintained if the children continue to live in Melbourne.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Reference has been made on several occasions earlier in this judgment to the credit that the parties should be given for facilitating and supporting the children’s relationship with each of them.
The Husband accepts that the Wife’s wish to relocate to Sydney is very much based on her desire to return home to the support of her family, and also to support her ill father, and is not in any way an attempt by her to undermine his relationship with the children.
The Husband’s opposition to the Wife and children moving to Sydney is based entirely on his belief that the quality of his relationship with the children will be diminished, as it will be impossible for him to be regularly and spontaneously involved in their day to day lives, including school activities, sporting activities and other extra-curricular activities on a daily basis. He is also concerned that the travelling for the children will become tiring and they may come to resent the imposition on their usual activities that having to travel down to Melbourne regularly will impose.

Section 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:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

If the Wife is permitted to relocate to Sydney with the children, there will be a significant change in the children’s circumstances. The children will change residences, [Y] will change school, [Z] will change kindergarten, [Y] will lose his involvement in Auskick and other sporting activities. Most importantly the children will lose their proximity to their Father.
Whilst Sydney is only a one and a half hour flight from Melbourne, the realities are that a trip each way will be some three to four hours, assuming no flight cancellations and delays.
The parties currently live within a five minute drive of each other. The children see their Father very regularly and he is involved in [Y]’s Auskick and is able to attend any important school, kindergarten or other functions.
In addition, the parties are able to ensure that they both enjoy birthdays, Christmases and other special occasions with the children without any difficulty. None of this can be achieved easily if the children are living in Sydney.

Section 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

If the Mother and children were to relocate to Sydney, there would be many practical difficulties and expenses that would arise.
The Wife’s proposal is that the children fly to Melbourne every third weekend as well as for part of all the school holidays. She concedes that at this time, the children are too young to fly alone and that they would need to be accompanied by one of their parents. On my calculation, this would involve a minimum of twenty return flights per year for the children and an adult for some years to come.
It was the Wife’s evidence that she was prepared to be flexible around these arrangements in that she would be agreeable for the children to miss some school on Friday or Monday to better maximise the time they have with the Father.
The Wife indicated that she would be prepared to offset some of the cost of these airfares by way of a reduction in child support.

A conservative estimate of the annual costs of the airfares is $12,000.00 to $15,000.00 a year, a significant financial imposition on both parties.
The Wife indicated that she was more than content for the Husband to have additional time with the children in Sydney upon him giving her reasonable notice.
The Husband raised concerns about the impact on the children of the travelling. He was concerned that [Z] would not cope with air travel, as he had trouble sitting still for long periods of time. It was the Wife’s evidence that [Z] did travel well on planes and that she was of the belief that they would travel happily. She also posited the idea of the trips occasionally being done by car. It is easy to imagine that the children would quickly find the prospect of ten hour car journeys wearing.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

(ii) 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

Both parents have the capacity to provide for the emotional and intellectual needs of their children, and have done so to date.
Dr Neoh was critical of the Wife for not picking up on the level of distress that [Y] has suffered as a result of his parent’s separation.

Dr Neoh was also concerned that, if permitted to relocate to Sydney, Ms Carne may miss any difficulties that [Y] has in adjusting to that move and therefore not adequately support him through that difficult period.
There is no doubt that the Wife feels that she would be much happier in Sydney and that she would have a greater family and friendship support network there. She would also be able to more easily spend time with and support her ill father. I find that she has projected her own perceived improved happiness in Sydney onto the children and that her beliefs that they will be better off there is not necessarily how the children feel, particularly [Y].

Section 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

Not relevant.

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

Both parents have and continue to demonstrate a very positive attitude to the responsibilities of parenthood. It reflects creditably on both of them that they have shielded the children as much as possible from the impact of their separation and have allowed the children to have a positive and meaningful relationship with them both.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

Not relevant.

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

Not relevant.

Section 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

Not relevant.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

The Wife is the children’s primary carer and there is no doubt that her level of happiness and sense of wellbeing impacts on the quality of her parenting of the children.
The Wife’s reasons for wanting to move back to Sydney are sound and completely understandable in the circumstances of the breakdown of the marriage, and her father’s illness.
The Wife is a remarkably strong, resilient and courageous woman, and concedes that she will get on with life in Melbourne if that is what this court orders.

It is noted that she was accompanied by friends that she had made in Melbourne for the duration of the trial, and whilst one of those was moving back to America in the new year, it is apparent that she has started to create her own network of friends and support in Melbourne. I have no doubt this will continue as she actively supports her children through their kindergarten, schooling and sporting lives.

Conclusion

This has been a very difficult matter to determine. Whilst the case law is very clear that when seeking orders for relocation, the party moving does not have to establish a good reason for wanting to relocate (see

A v A: Relocation Approach
(2000) FLC 93-035), in this instance there has to be real sympathy for the position that the Wife finds herself in after the breakdown of her marriage in a city she only reluctantly moved to in the first instance.
However, in balancing the best interests of the children, and in particular the impact of the move to Sydney on their relationship with the Husband and the real distress, evidenced by the children and in particular [Y], when faced with the possibility of moving away from their Father, with the freedom of movement of the Wife and the impact on her of not being able to relocate, I am of the view that it would be in the best interests of the children that they remain living with the Wife in Melbourne.
In forming this view, I am satisfied that it would not be realistic or indeed possible for the Husband to move to Sydney as there are no comparable employment opportunities for him in Sydney, nor for his partner, Ms T.
I am satisfied that whilst she will be very disappointed with this decision, the Wife will get on with life and will continue to be a loving, supporting and caring Mother to the children.
I am also satisfied that the Wife will continue to support the children having a close and meaningful relationship with the Husband, and that they will both continue to cooperatively co-parent and promote their children’s best interests.
In her Report, Dr Neoh flagged the possibility of [Y] having some additional ‘Father-son time’ with the Husband, as [Y] was expressing the desire for even further time with his Father. I am not going to make specific orders for [Y] to have additional time with the Husband as I am confident that the Husband and Wife will be able to make such arrangements cooperatively as between themselves.
Dr Neoh also concluded in her Report as follows:
“If the court were to find that it was in the children’s best interests to remain in Melbourne, I would expect that Ms Carne is likely to adjust if she was able to afford frequent and lengthy visits to Sydney at this time. In short, if she were able to visit more frequently, especially at this time when her father is unwell, I consider this would go a long way to assisting her adjustment to remaining in Melbourne, and this would only be in the boys’ best interests.”
Clearly, if unfortunately Ms Carne’s father’s health is to deteriorate, she will need to have the opportunity to spend time in Sydney with him and to also give the children the opportunity to spend some time with their grandfather. Again, no orders will be made in this regard, however it is anticipated that the Husband will be sympathetic to the possible difficult time the Wife and her family will be going through, and will ensure he supports her and the children during this time by being flexible and understanding.

I certify that the preceding one-hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Bender FM

Associate: Sarah Hession

Date: 12 December 2008