Carne and Feldt

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARNE & FELDT

[2013] FCCA 1851

Catchwords:
FAMILY LAW – Interim arrangements for parenting of child aged six years – unilateral relocation of child from [N] to [M] – distance between two locations is one hundred kilometres – parties separated since early 2009 – no dispute child have lived primarily with mother in period since – father seeks to compel return of child from [M] to [N] but for child to continue to live with mother pending inauguration of equal time parenting regime when child attains eight years of age – mother wishes to move to [M] because her partner has obtained employment there and she has lost her accommodation in [N] – parties agree presumption of equal shared parental responsibility applies – mother proposes father spends alternate weekends and half school holidays with the father – proposal entails loss of father spending mid week periods with child – meaningful parental relationships – considerations of freedom of movement – considerations of what is reasonable practicable – best interests.

Legislation:

Family Law Act 1975, ss: 60CA; 60CC; 61DA; 65DAA.

MRR v GR [2010] HCA 4
Godfrey v Saunders (2008) FLR 287
U v U (2002) FLC 93,112
Morgan & Miles [2007] FamCA 1230

Applicant:

MR CARNE

Respondent:

MS FELDT

File Number:

ADC 3904 of 2013

Judgment of:

Judge Brown

Hearing date:

8 November 2013

Date of Last Submission:

8 November 2013

Delivered at:

Canberra

Delivered on:

14 November 2013

REPRESENTATION

Counsel for the Applicant:

Ms Younger

Solicitors for the Applicant:

Andersons Solicitors

Counsel for the Respondent:

Mr Norcock

Solicitors for the Respondent:

Westley Di Giorgio

ORDERS

The matter is fixed for final hearing before Judge Brown in Mount Gambier on 19 & 20 June 2014 at 10:00am NOTING 2 days allowed.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 March 2014.
The Family Report to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
The proceedings be listed for further directions and if necessary trial directions, pending release of the family report herein, at the sitting of the court to [M] at 9.30 am on 11 April 2014.

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2007 (herein after referred to as “the child”).
The child [X] born [in] 2007 live with the mother in [M].
The child spend time with the father as follows:
(a)Every alternate weekend from the end of school Friday until the commencement of school the following Monday (or Tuesday in the event that Monday is a pupil free day);
(b)For one half of each short school holiday;
(c)For the first half of each end of year school holiday period, the halves to be agreed between the parties and failing agreement to be the first half of the holiday commencing in December 2013 and each odd ending year thereafter and the second half of the holiday commencing in December 2014 and each even ending year thereafter (subject to any arrangements agreed between the parties regarding the days of Christmas; Christmas Eve; and Boxing Day each year; so that the child spends equal periods of time with each parent on these occasions);
(d)On special occasions and on any other times as agreed between the parties.
The child be exchanged between the parties at the beginning and end of each period specified in order (6) hereof at a location to be agreed at [P] unless the parties agree otherwise in the period whilst the father is disqualified from driving.
The parties each be restrained and an injunction issue restraining each of them from abusing, denigrating or rebuking the other party in the presence or hearing of the children or permitting any other person to do so.
The parties each be restrained and an injunction issue restraining each of them from discussing any aspect of these proceedings with the said children, or permitting the said children to see any documentation filed in these proceedings.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the child and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the child; and
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The parents authorise by this order, the school, attended by the child to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at the expense of the parent requesting same).
Each parent is at liberty to attend at the child’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3904 of 2013

MR CARNE

Applicant

And

MS FELDT

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment relate to what lawyers call a relocation case. Relocation issues arise when one parent of a child wishes to live a distance away from the other parent concerned, after the end of the relationship between them.
Necessarily, any such move has implications for the child concerned, who is likely to be affected by the move, whether it happens or not. In addition, relocation cases have the potential to create great conflict between the parents concerned, particularly if one of them feels disregarded or unheard in respect of the move.
Mr Carne, “the father”, and Ms Feldt, “the mother”, are the parents of [X], born [in] 2007. Accordingly, [X] has just turned six years of age and has recently begun her formal primary school education.
The parties have never been married to one another. They met, in [N], where both lived, at the time, in August of 2006. They separated, again in [N], in January of 2009.
Accordingly, when the parties separated, [X] was around sixteen months of age. There is no dispute between the parties that, following their separation and up until this time, [X] has lived predominantly with her mother.
Ms Feldt was born [in] 1981. She has significant personal ties in [N], where she grew up and went to school. Her parents continue to live in the town. Apart from some years living and working interstate, in the early years of her relationship with Mr Carne, I gather that the mother has spent the vast majority of her life in [N].
Mr Carne also has significant connections to [N], where he too was born and grew up. He was born [in] 1983. It seems to be the case that the parties began their relationship when both were aged in their mid-twenties. Mr Carne works as a [omitted] in [D], which is about fifty kilometres to the north-west of [N].
Mr Carne’s father, [X]’s paternal grandfather, also lives in [D]. He sees [X] frequently, as does [X]’s paternal grandmother, who lives in Adelaide. It is Mr Carne’s case that [X] benefits from seeing her paternal grandparents regularly and that significant elements of [X]’s family are centred on [N].
Mr Carne owns a comfortable home, in [N]. He is well settled in the town, where he is happy. He has not re-partnered. It is his case that he wishes to be as fully involved, in every aspect of [X]’s life and care, as is possible, into the future.
Until fairly recently, Ms Feldt was renting accommodation for herself in [N]. She also had employment in the [N] district. She worked at [omitted] in [N].
Ms Feldt has re-partnered. She is engaged to be married to Mr F. She is pregnant and due to give birth on [omitted] 2014. It is Ms Feldt’s evidence that, in late August of 2013, she was advised by her landlord in [N] that her home was to be sold and therefore her lease would expire at the end of October.
It is further Ms Feldt’s evidence – untested as yet – that she was not able to secure suitable alternative accommodation for herself and [X] in [N]. This situation coincided with Mr F obtaining employment at [K] in [M]. Previously Mr F had worked at [T] in [N]. At [T], Mr F earned $690.00 per week. At [K] he receives $1,200.00 per week.
In all these circumstances, Ms Feldt elected to search for a property to rent for herself and family in [M]. She secured a three bedroom home, which she regards as comfortable and suitable for [X], located at [address omitted], [M], in early September 2013. She has now moved into this property.
From Ms Feldt’s perspective, the move to [M] will advance her and

Mr F’s financial security. This is important given the imminent birth of her next child. Ms Feldt has also been able to obtain a position for herself, on a part-time basis, at a [workplace omitted], in [M].
Ms Feldt informed Mr Carne of the move, in a text message, sent on 9 September. He was upset. It is his case that he was not properly consulted about the move. The move involved [X] being removed from the reception class at [N] Primary School. Ms Feldt has enrolled [X] at [M] Primary School, which is close to where she currently lives.
It is Ms Feldt’s evidence that [X] has settled well into the new school and enjoys her new home. Ms Feldt asserts that the move is likely to have many financial benefits for her and Mr F, which will necessarily benefit [X] to. In these circumstances, from Ms Feldt’s point of view, it would be a retrograde step, if she was compelled to return to live in [N] with [X].
Mr Carne is angry that the move was not discussed more fully with him, prior to it having taken place. He is upset that he was not consulted about the change of schooling for [X]. It is clear from what happened afterward that he made it clear to Ms Feldt that he, in no way, consented to [X] moving away from [N]. As such, he would categorise Ms Feldt’s actions in moving [X] as being unilateral in nature. He argues that the court should not condone Ms Feldt making this significant decision in respect of [X] without first securing his consent or the approval of the court.
In addition and most importantly, he argues that the move is not likely to be in [X]’s overall best interests because it will inevitably diminish the quality of the relationship, which [X] currently enjoys with him and other members of her paternal family, which is largely centred on [N].
The current acrimonious dispute, between the parties, needs to be placed into context. It is a drive of around one hundred kilometres between [N] and [M]. The two towns are connected by a bitumen highway. The township of [P] is located at the mid-way point. The greatest threat on the road comes from kangaroos, which are prevalent, particularly at dawn and dusk.
As previously indicated, there is no dispute that Ms Feldt has been [X]’s primary provider of care, for the larger proportion of her life to date. However, it is also common ground that Mr Carne has been spending regular periods of time with [X], with the periods being incrementally increased as she matures.
Between January 2009 and January 2010, [X] spent one night per week, with her father, usually on a Friday or Saturday night. Between January 2010 and May 2011, [X] began to spend alternate weekends, with her father, usually from Friday night to Sunday afternoon.
From May 2011 onwards, a regime was inaugurated which saw [X] spending one week night, with her father, in addition to the alternate weekends. Most recently, this has been Wednesday night. In the context of the current proceedings, the Wednesday night period has assumed some importance.
From Ms Feldt’s perspective, the arrangements for [X] to spend time with her father, have not been without their difficulties. She asserts that Mr Carne has significant issues to do with alcohol abuse and has not always been reliable in respect of the overnight regime. Mr Carne denies that he has any such alcohol issues.
Necessarily, if Ms Feldt and [X] remain living in [M], it will be difficult for [X] to spend the overnight period, on Wednesday, with

Mr Carne. These difficulties are exacerbated by the fact that Mr Carne has recently lost his driver’s licence, in respect of a drink driving conviction.
Mr Carne commenced these proceedings, on 18 October 2013. At his request, they were urgently listed before me during the sittings of the court to [M], on 23 October 2013. The urgency arising because of what he categorised as Ms Feldt’s unilateral move of [X] to [M].
At that time, Ms Feldt had not been able to respond formally to the application. In these circumstances, the case was adjourned for further hearing, in Adelaide, on 8 November 2013. Ms Feldt indicated that she would ensure the existing arrangements for [X] to spend time with her father would continue.
Perhaps naively I thought that the parties might be able to resolve the issues between them, through a process of mediation. I hoped that some re-jigging of [X]’s time with her father might be possible and some compromise reached in the light of each of parties’ particular circumstances.
In this context, I referred to the parties to the Family Relationships Centre, in [M], for such a mediation to be organised. I personally telephoned the FRC to advise of the situation arising, particularly the urgency of the matter and requested that some consideration be given to prioritising the needs of the family concerned.
Regrettably, the mediation has not as yet taken place. I am advised that the FRC require that the parties concerned undertake a post-separation parenting course, prior to being able to engage in mediation. Such a course is available only after 28 November 2013. I find this situation perplexing. It would obviously be better for both the parties themselves and particularly for [X] if they were able to reach some compromise regarding the issues arising between them.
Up to this stage, Ms Feldt’s move of [X] to [M] has not changed, in any way, the existing arrangements for [X] to spend time with her father. Ms Feldt has continued to drive [X] to and from [N], on both alternate weekends and for the other weekly overnight stay. In my view, this is to her credit. However, from her perspective, it is untenable, in the longer term.
At this stage, it is impracticable for Mr Carne to move from [N] to [M], although he may consider the move at some stage in the future. Equally, it is both unpalatable and impracticable for Ms Feldt to return to [N], where she has neither accommodation nor employment.
In his application, on both an interim and a final basis, Mr Carne seeks that the parties should have equal shared parental responsibility for [X] but she should continue to live with her mother. Significantly, in the context of these proceedings, he seeks an order that the mother be restrained from changing [X]’s place of schooling from the [N] Primary School. Necessarily, he seeks the return of [X] to the [N] area.
Mr Carne does not formally specify what should occur if Ms Feldt is unwilling herself to live in [N]. In a formal sense, he does not seek that [X] should live with him. Implicit in his position is the recognition that [X]’s interests will be best served, if she continues to live with her mother.
Until the end of first term in 2014, Mr Carne proposes that the existing arrangement for him to spend time with [X] should continue. Thereafter, he proposes a gradual increase in his time with her, which will culminate, in a week about regime, with [X] living for strictly equal periods of time with each of her parents, when she is around eight years of age.
This is the nub of Mr Carne’s case. He wishes to restrain Ms Feldt and [X], from living outside of [N], in order to work towards what he believes will be the optimal arrangement for [X]’s care, namely a week about regime. Necessarily, such a regime can only come about at the cost of confining Ms Feldt’s entitlement to live how and where she chooses.
In her response, filed on 8 November 2013, Ms Feldt agrees that the parties should have equal shared parental responsibility for [X]. In the interim, she proposes that [X] should spend alternate weekends, with her father, from the end of school on Friday until the commencement of school the following Monday (or Tuesday if that Monday is a non-school day); and for half of each school holiday period.
Implicit in her position is that she and [X] should be able to continue to live in [M], as is her preference. It is her case that, although the Wednesday night period will be abandoned, Mr Carne will still be able to spend significant periods of time with [X] because of the extension of the alternate weekly period (from Sunday afternoon to Monday morning), augmented by regular school holiday periods, which apparently have not occurred up to this stage. Accordingly, it is her position that she proposes that Mr Carne start to spend more time with [X] than he has done up to this stage.
She further proposes that [X] be exchanged, between the parties, at [P], presumably once Mr Carne has secured the return of his driver’s licence. It is Ms Feldt’s case that she has demonstrated that the travel of [X] regularly, between [N] and [M], is logistically possible, by what has happened since she moved.
The implicit underpinning of Mr Carne’s case is that he wishes to prevent Ms Feldt from moving to where she wants to move and, in effect, to restrict the manner in which she wishes to lead her life. The purpose of these restrictions on Ms Feldt’s lifestyle, being to ensure that he achieves, in time, what he considers is an appropriate level of relationship between him and [X].
This desirable level of relationship can only be achieved at the price of restricting Ms Feldt’s freedom to live where and how she wants to, too some degree. There is no complementary restriction, so far as

Mr Carne and his lifestyle are concerned. Further, this restriction on Ms Feldt, arises in a context where the parties are long separated and both have moved on with their lives.
It is Ms Feldt’s position that she is currently [X]’s undisputed primary custodian and this has been the situation consistently, since the parties separated, now over four years ago. It is further her position that she has a legitimate and understandable reason for wanting to move to [M].
As such, she asserts it would be unwarranted for the court to frustrate her reasonable expectations, regarding her mode and manner of life, particularly given her prior level of parenting of [X], in the lengthy period, since the parties separated.

In addition, she asserts that the distance between [N] and [M] and any difficulty arising are not so great that it will unduly impinge upon [X]’s entitlement to maintain a meaningful level of relationship with her father. In addition, she asserts that the parties’ prior history with one another demonstrates that she has the required level of insight to support [X]’s relationship with her father.
Importantly, it is her case that her proposal to extend Mr Carne and [X]’s time together is demonstrative of her parenting bona fides and willingness to support the child’s relationship with her father, in what she would describe as, at times, difficult circumstances. Underpinning her position is her view that an unequal time regime would neither be in [X]’s best interests nor objectively feasible to implement.
These proceedings are designed to resolve this difficult dispute between the parties, at an interim or provisional stage, pending a possible further and more exhaustive hearing.

The applicable legal principles

In making the interim decision, as at the final stage, the best interests of the child affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served are set out in the Family Law Act at section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it, the primary considerations and additional considerations.
There are two primary considerations which are set out in section 60CC(2)(a) and (b), namely:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
As a result of recent legislative amendments, the latter consideration, relating to protective concerns, is to be given greater weight. However, although the mother has some criticisms of the father, as a result of his alcohol use, this does not appear to be a case which turns upon the need to protect [X] from suffering either physical or psychological harm, as a consequence of being exposed to abuse, neglect or family violence.
From Mr Carne’s perspective, the case centres on the benefits that [X] is likely to derive from having a meaningful level of relationship with him, particularly in the context of the child living some distance away from his place of abode and where [X] has previously lived.
Other criteria relating to how a court is directed to consider how the best interests of any child concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of any individual child’s circumstances may be addressed in any order which the court makes.
The court is called upon to make this decision at an interim stage. The difference between an interim and final hearing being that interim proceedings do not determine the final arrangements for a child’s care, whereas final proceedings do.
In addition, at the final hearing stage more evidence is available to the court, particularly in the form of an independent expert evaluation of the needs of any child concerned. In addition, at the final hearing stage, more time is available and disputes of fact arising between the parties concerned can be resolved through a process of cross-examination.
At this stage, there has not been time for a family report to be prepared. In addition, neither party has gone into the witness box and been subject to scrutiny and cross-examination by the other party’s lawyer. Both these interventions will take place, if a final hearing occurs.
At this stage, there are not many factual disputes arising between the parties. Importantly, they agree on the date of their final separation and that [X] has lived predominantly with her mother in the period since. In the overall context of this case, these are significant concession to make.
However, notwithstanding this level of agreement, it is my impression that the parties do not have an easy relationship with one another. As previously indicated, Ms Feldt characterises Mr Carne as a person who has a significant addiction to alcohol. She asserts that, when he is intoxicated, which is frequent, Mr Carne’s ability to take proper care of [X] is significantly impaired.
For his part, Mr Carne categorises Ms Feldt as being somewhat high handed in respect of making decisions concerning [X]. It is his position that Ms Feldt has, in the past, changed arrangements for him to spend time with [X], particularly on the weekly overnight period, without consulting him. In these circumstances, he contends that he can have no confidence that Ms Feldt will support his relationship with [X], if she continues to live in [M].
Mr Carne denies that he has a drinking problem. Ms Feldt denies that she is a capricious or difficult person to deal with. It is her case that she has always facilitated [X]’s relationship with her father, in at times difficult circumstances. These issues are difficult, if not impossible, to resolve in the context of an interim hearing, such as this one, which does not involve any process of cross-examination. As such, they are issues for final hearing.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child concerned: [see Family Law Act section 61DA]. The presumption relates to the allocation of parental responsibility but not to the strict allocation of time, which a child spends with each of his or her parents.
The presumption is rebuttable if the court finds reasonable grounds to believe family violence or abuse has occurred of any child concerned, or it would not be in the best interests of the children affected by the court’s decision.
In addition, at the interim stage it can be rebutted if it is considered not to be appropriate for it to be applied. However, if the presumption applies, the court must consider a child spend either equal time or substantial and significant time with both parents, subject to consideration of the child’s best interests and what is objectively reasonable to be put in place.
In this case, the parties agree that the presumption of equal shared parental responsibility should be applied to them and their ongoing care of [X]. On the basis of the evidence available to me, I can see no evidence sufficient for me to look behind this agreement and determine that the presumption should be rebutted for any factor arising under section 61DA. From Mr Carne’s perspective, this is important in the light of his ultimate wish to parent [X], with Ms Feldt, on a week about basis.
Equal time is not a complicated concept. It is as its terminology suggests, the time a child spends with each parent being divided on a strictly equal basis. It is the outcome to which Mr Carne ultimately aspires in his parenting of [X], with Ms Feldt.
The concept of substantial and significant time is defined in the legislation. It concludes time with a child on weekdays; weekend; special occasions; and times that allow a parent to be involved in the child’s daily routine [see section 65DAA(3)].
Again, I emphasis, the fact that the parties agree on the allocation of equal shared parental responsibility or the court itself finds that the presumption of it is not rebutted, does not, of itself, automatically mandate either an equal time or a substantial and significant time regime. Both such outcomes are predicated on the basis that they are in the best interests of the child concerned and are objectively feasible to implement.
Pursuant to section 65DAA(5), the matters which the court is directed to take into account in determining what is reasonably practicable including the following:
·how far apart the parents live from each other;
·the parents’ current and future capacity to implement either an equal time or substantial and significant time regime;
·the parties’ capacity to communicate effectively with one another; the impact that such an arrangement would have on any children concerned;
·any other matters which the court considers relevant.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[1]
[1] See MRR v GR [2010] HCA 4 at paragraphs 13 and 15.
Having, as best I can, attempted to summarise the applicable principles of the Family Law Act, given the structure of the matters delineated in part VII of the Act, which is the part of the Act dealing with children, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties themselves. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of the children in the now changed circumstances following the end of the marital or de facto relationship between them.
There is no principle of law that requires separated parents to live indefinitely in close proximity to one another. On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents regardless of the fact that the parents concerned choose not to live together.
It has been said that relocation cases by their nature require particular and careful analysis. The consequence of any proposed move does not turn on the distance involved alone. However, for obvious reasons, a move from Burnie to Broome, say, is likely to be more significant for a child than a move from Warrnambool to Wangaratta.
In determining the consequences of the move in question, what is also likely to be highly relevant is the age of the child concerned. For obvious reasons, the move of a baby or a pre-schooler, in terms of the development of parental attachment, will be very different to those of a teenager, whose parental relationships are likely to be well established.
In addition, there may be financial considerations arising from the move. Wealthier families are able to cope more easily with issues of relocation because of their greater financial resources. Less financially equipped families may struggle to meet the fuel or other transport costs involved in relatively short moves.
In many circumstances, children are frequently able to maintain their relationships with people significant to them, including a parent, by less frequent periods of quality time spent in school holidays, which are supplemented by other forms of communication, such as telephone, webcam or letters.
As Kay J pointed out in Godfrey & Sanders,[2] what the legislation aspires to promote is a meaningful relationship, not an optimal relationship. It is a common occurrence, in contemporary Australia, for a parent to move voluntarily away from a child or children concerned after a relationship breakdown.
[2] See Godfrey v Saunders 2008 FLR 287
In addition, children are often relocated away from one of their parents as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved. These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities in a different place to that in which they lived whilst in a relationship with the other of their child’s parents.
High rates of divorce and other forms of parental separation are also an incident of modern Australian life. Although the shared parenting legislation has added emphasis to the principle that children benefit in their emotional and social development by having as extensive a relationship as possible with both their parents, as I say, there is no principle of law that the parents of children are required to live indefinitely close to one another in order to ensure that the optimal outcome for their children is achieved.
The recent legislative amendments have not changed this situation. If the Australian Government had intended to change this position, it would have specifically stated it in the applicable legislation. Significantly, pursuant to rights read into the Australian Constitution, by the High Court, Australians have a right to live how and where they choose. Australia is a free and democratic society which prizes the freedom of its citizens.
Accordingly, the court cannot ignore the legitimate expectations of parties who come before it regarding these personal freedoms. However, the best interests of any child concerned remain the paramount consideration in the outcome of every type of parenting case, including a relocation one.
As one of the components of a child’s best interests is the right to have a meaningful relationship with both his or her parents. I must thus consider the adequacy of the arrangement proposed by the relocating parent for any child concerned to spend time with the other parent involved.
Accordingly, what the court is required to do is to weigh up and balance the various considerations, both primary and additional, arising from section 60CC in respect of the parties’ competing proposals to determine the best outcome for the child concerned.
However, in so doing, the court cannot ignore a parent’s entitlement to freedom of movement. In my view, these considerations apply to both the interim and final stage.

Consideration of the relevant section 60CC factors

I accept that the move of [X] from [N] to [M] must have implications for the quality of the relationship [X], which will have with her father. Unless Mr Carne elects to move, he will not be able to see her on a daily or frequent basis. His time with her will be confined to weekends and blocks of time, during the school holidays.
However, in my view, the distance entailed in the move does not constitute an insuperable barrier to [X] having a meaningful level of relationship with their father. The distance is not so great that it will inevitably prevent [X] from interacting regularly, with Mr Carne, and being able to engage with him, in a variety of activities, in both [N] and [M].
The distance between the two locations is one hundred kilometres. It is one which many inhabitants of rural and outback Australia are used to driving regularly, to fulfil both personal and business obligations, particularly if they live in a smaller centre and have to come regularly to a larger provincial one. This would appear to be the relationship between [N] and [M].
Under Ms Feldt’s proposal, Mr Carne will see [X] fortnightly, in [N]. In addition, once Mr Carne has resumed driving, it is likely that he would be able to come to [M] to take part in some of [X]’s school activities. As such, the move will not inevitably deprive Mr Carne of the opportunity to be involved in routine daily aspects of [X]’s life.
However, I accept that the opportunity for much spontaneity will be taken from the relationship. Mr Carne will not be able to be involved regularly with caring for [X], in the context of her daily routine for school. He will not be able to do such things as help with her homework; prepare her lunch; or take her regularly to and from school. These are significant activities, which add depth and intimacy to a parent-child relationship.
However, in this regard, I bear in mind what Kay J said in Godfrey & Sanders that the intent of the legislation is directed to secure meaningful parental relationships, for children, not necessarily the optimal one, particularly if issues of freedom of movement, for the other parent, are raised.
Ms Feldt’s move to [M] occurs for rationale and readily understandable reasons. Her partner, and the father of her soon to be born child, has secured better paid employment in [M]. Due to the end of her lease in [N], she was compelled to look for sources of alternative accommodation, which on her case were not readily obtainable in [N]. As such, the move cannot be described as being capricious or selfish.
Up to this stage, Ms Feldt has been [X]’s unchallenged primary carer. Mr Carne makes no significant criticisms of the manner in which Ms Feldt has discharged her parenting responsibilities [X]. In addition, at this present stage, he does not desire to supplant Ms Feldt, as [X]’s main provider of care. Rather, what he wishes to do is to direct where Ms Feldt should discharge those responsibilities.
It is often said to be axiomatic that a happy parent is likely to be a more competent parent. Essentially, if the court unduly interferes with the way of life which a custodial parent legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child or children concerned.
If the court compels Ms Feldt to return to [N], at the instigation of

Mr Carne, it is likely to make her feel bitterly disposed towards him. She will be unhappy at having to either move away from Mr F or to have been the cause of him perhaps having to give up his job in [M].
Although I accept that Ms Feldt is likely to have some affectionate view of [N] because of her historical connections with the town, if she is told she cannot leave it, she will feel that [N] is a prison and

Mr Carne is her gaoler. For obvious reasons, such an atmosphere is hardly likely to be conducive to the inauguration of a successful shared parenting regime, to which Mr Carne aspires.
The fact that the outcome desired by Mr Carne comes with no cost of personal disadvantage to him is also likely to be a source of some bitterness for Ms Feldt. At the present time, Mr Carne is not willing to consider moving, yet he wishes to keep Ms Feldt living indefinitely in [N].
As Gummow and Callinan JJ pointed out in U v U “maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.”[3]
[3] U v U (2002) FLC 93,112 at 89,091
Again, in U v U Hayne J said as follows:
“If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.” [4]
[4] Ibid at 89,103
In this context, Hayne J, whilst indicating that the best interests of the child, potentially affected by the relocation, remained the paramount consideration, they were not the only consideration because, in every relocation case, there were at least three people, who would be affected by any order that was made, namely two adults and a child, as well as possibly other relatives of the child concerned. The interests of all these persons needed to be considered, not only the child.

In this case, I accept that the interests of not only the parties and [X] will be affected by the court’s outcome. So too will be Mr F; [X]’s grandparents, on both her paternal and maternal side; as well as her various cousins, who live in the [N] district. [X] is undoubtedly a much loved child.
In AMS Kirby J said as follows:
“One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.”
In this case, it is Ms Feldt’s case, that for her to remain [N] and to continue in her role as [X]’s primary carer, whilst the father continues his current lifestyle without restriction, would represent an unwarranted interference into her life.
At this stage, given the period of time the parents have been separated, the fact that Ms Feldt has been [X]’s main provider of care; and the logistical considerations arising from a move of 100kms in distance; it is difficult for me to consider the case in different terms.
As the child’s best interests remain the paramount consideration, in the outcome of any relocation proposal, and as one of the components of a child’s best interests is the right to have a meaningful relationship with both parents, I must consider the adequacy of the arrangements proposed, by the relocating parent, for the child to spend time with the other parent concerned.
[X] is six years of age. It seems clear that she knows her father well. She will continue to be able to see him regularly, on at least a fortnightly basis. As such, she is likely to be able to maintain her relationship with her father, if she continues to live in [M] and he remains living in [N].
Ms Feldt has raised many significant criticisms of Mr Carne’s parenting. She asserts that [X] needs to be protected from Mr Carne, when he has been drinking. However, her desire to move is not predicated on any issue related to protective concerns. She moves for reasons relative to her accommodation and her partner’s employment.
Ms Feldt asserts that [X] is in favour of the move. [X] is six years of age. In my view, given the conflicted circumstances of the parties, I must approach any evidence, regarding [X]’s purported views, with a great deal of caution. At the end of the day, [X] lacks sufficient maturity to understand the implications of the difficult issues confronting the court.
On the basis of the evidence available to me, I accept that it is more likely than not that [X]’s most significant relationship is currently that which she shares with her mother. As a consequence, the court must give earnest consideration as to which locale it considers Ms Feldt will be able to best discharge her responsibilities as a parent.
Considerations of this kind militate in favour of the court permitting Ms Feldt to remain living in [M], with [X]. Ms Feldt has employment and accommodation in [M]. Her partner has secured significantly better paid employment in [M]. It seems more likely than not that these factors will add to Ms Feldt’s overall level of contentment with her lot in life and render her a better parent.
[X] moved to [M] during the end of term three school holidays. The move is a significant one. But I do not think that it can said that [X] is moving to a totally new environment. She remains in the primary care of her mother. She will be able to spend time with her father regularly. In addition, there is no evidence to indicate that she has not successfully adjusted to the move.
Although Ms Feldt is open to criticism for the unilateral nature of the move, there are likely to be some difficulties, arising for [X], from compelling Ms Feldt to return the child to [N]. Ms Feldt would have to find somewhere to live and [X] would suffer some level of disruption, as a consequence.
It will be more difficult for Mr Carne to spend time with [X], if the child remains living in [M]. However, the practical difficulties arising from the relocation are not overwhelming. I accept that the road between [M] and [N] is of good quality and the drive takes approximately one hour.
Many children, in separated families, living in the major capital cities of this country, regularly undertake journeys of a simular duration, to spend time with a parent. Indeed, some may consider that a drive, of such a distance, along a rural highway, to be a less stressful than one involving driving in traffic clogged thoroughfares, through the suburbs of Sydney or Melbourne.
It is Ms Feldt’s case that she has always supported [X]’s relationship with her father. In my view, it is significant that [X] has continued to spend time with her father, both before and after the move to [M]. It is also her case that she has done all the driving necessary, since

Mr Carne lost his driver’s licence.
I cannot ignore the unilateral nature of Ms Feldt’s actions in moving [X] to [M]. At best, she was naïve to consider that Mr Carne would easily acquiesce to the move. At worst, she hoped to present both

Mr Carne and the court with a fait accompli which could not be reversed.
However again, in my view, the move must be considered in its context. It was not a clandestine move of a child, a vast distance, to another location within continental Australia. It was not a move whose only intention can be to dislocate the child’s relationship with the parent left behind.
The move cannot be characterised as being selfish or capricious in nature. Rather Ms Feldt wished to move to [M] for the financial advancement of her family and to maintain her relationship with Mr F. She moved within the confines of a rural district of South Australia from an outlying centre to its provincial capital.

Conclusions

Every relocation case is different and requires careful analysis. This is particularly so, at the interim stage, where evidence is provisional and untested. The court must be careful to not make potentially far reaching decisions, for any child, on the basis of such evidence.
In addition, the court must be careful not to condone unilateral parenting decisions made by one parent alone. As such, it is usually preferable that issues of relocation be determined on a level playing field rather than one which has been skewed to the advantage of a parent who has relocated, without either the permission of the other parent concerned or the court’s approval, having been first obtained.
In this sense, Mr Carne has some entitlement to feel aggrieved. However, his understandable disappointment must be placed in context. The distance between [N] and [M] is 100 kilometres.

Ms Feldt has been [X]’s main provider of care during the many years which have elapsed since the parties separated. The court is not in a position to ignore her aspirations in life.
As the presumption of equal shared parental responsibility applies in the case, I am required to give earnest consideration to [X] spending either equal time or substantial and significant time with both of her parents.
Both such options rely on Ms Feldt being firstly compelled to return to [N] and then being restrained from moving her residence from there, as Mr Carne is not willing to consider moving to [M] and I cannot compel him to do so, even if such an outcome was reasonably feasible.
In purely hypothetical terms, I accept that the most desirable outcome, for [X], would be one where she is able to see her father easily, in all manner of circumstances, every few days or so. But such an outcome would come at a price. In order to achieve it, Ms Feldt would have to abandon her plans to move, in tandem with Mr F, to [M].
The best interests of a child are not the only consideration relevant to any orders to be made following the application of the presumption of equal shared parental responsibility. The court is also mandated to consider issues relating to what is objectively practical, based on the reality of the situation in which parents and children find themselves, not what is theoretically desirable for any children concerned.[5]
[5] See MRR. v GR (supra) at paragraph 15
In my view, the outcome proposed by Mr Carne is highly impracticable. It would render Ms Feldt bitter and resentful. It is likely to render the parties’ already fraught parenting relationship more problematic. As such, it is not likely to be helpful to [X].
The shared parenting provisions of the Family Law Act are significant ones and far reaching. However, in my view, they do not enshrine a principal that separated parents are obliged to remain indefinitely living in close proximity to one another, to ensure that their child retains an optimal level of relationship with them both.
Practical considerations may make such an outcome unworkable, (restraining one parent in a specified locale) particularly if such an outcome results in the effective negation of a parent’s right, as a citizen, to live how and where he or she chooses to live. This is notwithstanding considerations relative to the best interests of the child concerned.
As Boland J put it:
“The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtaining such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”[6]
[6] Morgan & Miles [2007] FamCA 1230 at paragraph 74
Putting aside considerations of practicality, in my view, a consideration of the various section 60CC factors, also militates in favour of the mother’s relocation of [X] to [M] being ratified at this interim stage. The mother is settled and happy in [M], where Mr F has well paid employment. She is expecting a child, with Mr F, shortly.
It seems likely that she will be able to discharge her parenting responsibilities more effectively, for [X], in [M] than in [N]. This is a significant factor, in my view.
In this case, there is no suggestion that [X] should not continue to live predominantly with her mother, at this stage. The journey between [N] and [M] can be accommodated in an hour. Notwithstanding the circumstances of Ms Feldt’s move to [M], it would be an unacceptable intrusion into her affairs to compel her to return to [N], given the logistical import of the move.
I have endeavoured, as Boland J puts it, to exercise a structured discretion, which arises following the application of the presumption of equal shared parental responsibility pursuant to section 61DA. I acknowledge I am directed to consider firstly equal time and then substantial and significant time, both outcomes which will be frustrated by the distance between [M] and [N].
However both such outcomes depend on an affirmative answer to two questions – firstly, is the outcome in the best interests of the child concerned and secondly, is it objectively feasible. In all the circumstances of this case, I am satisfied that both such questions are to be answered in the negative, at the present time.
I am well aware that the case comes before me at an interim stage. Accordingly, I will fix the parties’ competing applications for final hearing in [M], at the earlier opportunity, which will be 19 & 20 June of next year. I will also order that a family report, pursuant to section 62G of the Family Law Act, be prepared in conjunction with this hearing. Such a hearing will enable the court, to conduct a further hearing, into the matter, if it is necessary.
However, for the reasons provided, I do not think that it would be in [X]’s best interests to compel her and Ms Feldt to return to live in [N], pending this final hearing. I am satisfied that such an outcome has a serious potential to be dislocating for the long standing arrangements for [X]’s care.
The distance between [N] and [M] is not so great that it must condemn the relationship between [X] and her father to extinction. In my view, the distance is a manageable one. [X], at six years of age, is likely to know her father well and remember him between fortnightly visits. Her relationship with her father is also likely to develop further, once the two begin to spend school holidays together.
Although necessarily, Mr Carne will be disappointed at the change the move will wrought on the potential for his relationship with [X] to deepen, in terms of its intimacy with him, because of the loss of mid-week time, in my view, he will be able to maintain a meaningful level of relationship, with her, through regularly spaced periods of time spent with her with on weekends, during school terms, as well as for block periods of time in holidays.
The mother’s proposal, in this regard, does not result in a significant diminution of Mr Carne’s time with [X], although I accept that the quality of the time is likely to be changed, especially in the context of the overnight Wednesday period. Accordingly, I will make the orders proposed by Ms Feldt, at this stage. In my view, her proposal is best suited to satisfy [X]’s best interests.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 14 November 2013

[2013] FCCA 1851

14 November 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Natural Justice

Procedural Fairness

Remedies