Cavanagh and Kennedy

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAVANAGH & KENNEDY

[2013] FCCA 345

Catchwords:
FAMILY LAW – Unilateral relocation of the mother contrary to restraint in final consent order – contested interim hearing to have the mother return – mother says that she cannot afford rental costs in (omitted) – father offering to contribute towards the mother’s rent in the interim period. – Mother receiving rent allowance effectively reducing the cost of rent in (omitted), not apparent in her initial material – difficulties of contact – mother’s relocation introduces for the father a round trip of approximately 280 kilometres which impacts on the time the child can spend with the father –father on roster – Mother purports to be “forced” from her home – mother agreed to final orders that she leave the home upon receiving the property settlement sum – Order to relocate on an interim basis refused.

Legislation:

Family Law Act 1975, s.60CC

Rice v Asplund [1979] FLC 90-725
SPS & PLS [2008] FamCAFC 16
Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4
Morgan & Miles [2007] FamCA 1230
C & S [1998] FamCA 66
Re K (1994) FLC 92-461

Applicant:

MR CAVANAGH

Respondent:

MS KENNEDY

File Number:

TVC 1515 of 2007

Judgment of:

Judge Willis

Hearing date:

27 November 2012

Date of Last Submission:

21 December 2012

Delivered at:

Cairns

Delivered on:

15 March 2013

REPRESENTATION

Solicitors for the Applicant:

Bill Cooper & Associates

Solicitors for the Respondent:

Beckey Knight & Elliott

ORDERS

The mother and father are restrained from discussing this litigation with, or in the presence or hearing of the child X born (omitted) 2006 (“the child”) or from allowing any other person to do so.
The mother and father are restrained from discussing their hopes or wishes in relation to future living arrangements with, or in the presence or hearing of the children or from allowing any other person to do so.
The mother is to forthwith do all acts and things necessary to relocate the child’s residence to the city of or suburbs of (omitted).
The mother is to forthwith do all acts and things necessary to re-enrol the child at (omitted) School, where the child previously attended.
The mother is to have the child back in place at (omitted) School by no later than 15 April 2013, or such other time as agreed to by the father.
The father is to pay the sum of $70.00 each week to the mother by way of interim contribution to the mother’s rental costs, commencing from the time that the mother secures a rental property in (omitted).
The Orders of 15 February 2012 are to remain the operative orders.
The child X born (omitted) 2006 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Magistrates Court of Australia at Cairns.
The Independent Children’s Lawyer is to file a Notice of Address for Service within 7 days of being appointed.
The Independent Children’s Lawyer organise for the preparation of a Family Report and each of the parties are directed to comply with all reasonable requests of the Independent Children’s Lawyer to attend and participate on the dates and times as requested in order for the preparation of the Family Report to occur.
The parties are to each complete and return the Independent Children’s Lawyer’s questionnaire within seven days of receipt. In the event there is a Solicitor representing the party, the Solicitor for the party is directed to forward the questionnaire to their client within 48 hours of receipt.
This matter be listed for mention on 25 June 2013 at 10:00am in the Federal Magistrates Court of Australia at Mackay. The parties are to jointly write to the Court requesting the mention date be vacated in the event that the Family Report has not been made available at that time.
Liberty to apply to have this matter relisted before Federal Magistrate Willis in the event any issues arise regarding timing of the mother’s move back to the (omitted) area.

NOTATION:

A.The Court notes that the mother has been provided with one month to relocate. In the event that she has accommodation organised but it is not available until some time shortly after 15 April 2013, it would be the expectation of the Court that the father would agree to a small extension of time.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MACKAY

TVC 1515 of 2007

MR CAVANAGH

Applicant

And

MS KENNEDY

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The background to this matter is that the parties agreed to consent orders for parenting orders on 15 February 2012 in relation to the living arrangement of the only child of their relationship, X born on (omitted) 2006. The mother has another child, Y, aged 15, who was raised within this family for the duration of their relationship. Y is a half brother to X.
The orders provide significantly for X to live with her mother essentially at all times, other than to spend time with her father for some of the father’s rostered days off. He has had his rostered days off pursuant to his roster with a (omitted) company. At the time the orders were made, the father had a cluster of four days off from time to time and within those four days the orders provide for X to live with the father as set out in order 4(a) for three out of four nights during each of the father’s four rostered days off from work from 10 am on the second day of his rostered day off, if it is a non-school day or after school if it is a school day until 6 pm on the fourth day if it is a non-school day or otherwise until the commencement of school on that fourth day.
Order 5(b) provides, significantly, provision for the father to provide the mother with a copy of his current roster and any amendment to it within two days of such amendment. It is fair to say that it is anticipated that this may change from time to time in the future. The orders also provide for a raft of other orders including equal shared parental responsibility, school holidays, child’s birthday, Mother’s Day, Father’s Day, Y’s birthday, telephone communication, exchange of information between the parties, alternate care arrangements, notice if the child is taken out of (omitted), a definition section, changeover arrangements and injunction.
Order 2, following on from equal shared parental responsibility, carries the heading “consultation about major long term issues” which are referred to in the previous orders and it reads:
If the parties need to make a decision pursuant to order 1 herein or any other parenting issue, then they are to consult with each other in the following way: (a) the parent making a decision needs to notify the other parent in writing about the decision that needs to be made, the other parent will respond in 10 days. If the parties are not in agreement, then within one month, the parents will jointly attend a dispute resolution agency as agreed in (omitted) and, failing agreement, at RA in (omitted) the parents will bring with them copies of their written correspondence referred to earlier and each party will act genuinely and reasonably in an endeavour to reach an agreement.
One of the restraints referred to in order 20 refers to each party in 20(c):
Each parent is restrained from relocating the child outside the (omitted) district unless agreed in writing between the parties.
In this matter it is asserted that contrary to the provisions of Order 20 (c), the mother has relocated to an area outside the (omitted) district without the father’s written agreement. It is agreed that the mother has relocated from (omitted) School, a (omitted) suburb of (omitted) to (omitted), a township community some 150 kilometres away. I think there is reference to it in the mother’s material of being about 130 kilometres. A Google map shows the distance at 150 kilometres. Nothing turns on whether it is 130, 140 or 150 kilometres. The time taken to travel this distance is around an hour and a half.
It is agreed that the mother invited the father to attend dispute resolution and the father did not attend. In the overall scheme of unfolding events, the mother’s invitation to the father to attend family dispute resolution appears to have been an attempt to invite the father to mediation on 5 August 2012 according to the date shown on the section 60I certificate issued on 15 September. The mother places considerable emphasis on her decision to leave (omitted) around the fact of the father’s refusal to mediate in August and as a significant part of her decision to depart (omitted) in October 2012. It seems however that the mother’s narrative set out in her affidavit material is flawed to the extent that at the time the invitation to attend mediation was issued I can see no express advice by the mother to the father that she is intending to relocate to (omitted).
It does not seem to be disputed that the first time the mother expressly advised the father that she had relocated to (omitted) was via her solicitor’s letter to the solicitor for the father dated Wednesday 10 October 2012 as seen in annexure TLK4 page 43. That letter reads in part:
In all of the circumstances Ms Kennedy had entered into a tenancy agreement of a property at (omitted) at a rental of $380 per week. In order to secure that property she has had to pay six months rent in advance. She was unable to obtain appropriate accommodation in (omitted) for that amount which as previously advised is within her limited budget.
The letter goes on to state that the mother is leaving the family home she had been occupying with X and Y the following day being 11 October. There is no evidence of a letter prior to the letter of 10 October indicating that the mother intended to leave (omitted) and relocate to (omitted). The mother says in her affidavit material at paragraph 9:
During the intervening period to the 11 October 2012 I searched (omitted) for rental properties but could not find anything suitable and which I could afford.
I take that to mean she could not afford anything other than the property at the rental of $380 per week that she found at (omitted):
Through my solicitors I have stayed in communication with the applicant’s solicitors advising them of my predicament.
The intervening period seems to refer to the period mentioned earlier in the affidavit at paragraph 5.
The final property orders were made by consent on 8 August by the Court. The paragraphs of the mother’s affidavit are not set out in chronological order. The mother says in the subsequent paragraphs at 7 and 8 that:
In the lead up to property matters I needed to consider where I would live with the children and their pets if I was forced to move from our home.
And:
As it turned out I could not afford to pay the applicant any money in exchange for him transferring our home to my name. I was left with no alternative but to transfer my interest in a property for an agreed amount.
What is meant by the “lead up period.” The mother’s deliberation as to where she might live in the lead up to the property matters needs to be put into a context, i.e., the lead up to filing the orders formally made on 8 August 2012 would be the period prior to her signing those orders. The orders were signed on 18 July. It is fair to assume that by 8 August when the orders were also signed off by the father and then made by the Court that the mother’s deliberation was well and truly complete. They were complete on the day the mother signed off on 18 July 2012.
I note by way of background from the orders on file that the parties were ordered on 23 April 2012 to attend a financial conference on 10 July 2012 in relation to property matters. The next mention date scheduled for the property matters was 15 August 2012. Leave was granted to have that date vacated if final orders were filed prior to that date. The final property orders were drawn up and signed off, as I said, by the mother on 18 July 2012 according to the draft on file. With the mother’s signed off copy of the property consent orders the accompanying letter of 25 July 2012, her solicitor writes a letter enclosing the orders saying:
As advised to Mr C, our client is looking for alternative accommodation within the region.
The mother through her solicitors then commences a running commentary regarding her looking outside of (omitted) for rental. This is after the mother has filed an affidavit saying if she doesn’t get enough money in the property settlement she is looking at the (omitted). That is referred to in her affidavit of June. The letter written on 25 July is seven days after the mother had signed off on property orders. It includes the following:
Your client will appreciate the very high demand for rental. Accordingly our client has had to look for properties from (omitted) to (omitted).
I observe at this point that the fact of high rents in (omitted) would likely have been in the knowledge of the mother at the time she signed off on the consent orders. Reference is made in fact in her affidavit as I’ve said 6 June 2012 wherein the wife says if she doesn’t get the house she will not be able to stay in (omitted) as the rents are higher than paying off a house.
The letter of 25 July 2012 also indicates the mother is wanting to move out of (omitted) home as soon as possible. After signing consent orders, a week later the mother wrote to request an advance of the agreed sum. The mother requested $20,000.00 within 30 days so that she can offer a landlord a six month’s rent. She will then move out and cease paying the $200.00.
The father signed off on the consent orders after the mother about 13 days after on 31 July 2012. A letter was forwarded to the Registrar on Thursday 2 August enclosing the original consent orders. The letter is (as I showed Counsel during the hearing) stamped with a received date on Monday 6 August and the orders were made by the Registrar on the 8 August 2012.
The mother knew when she signed off on the consent property orders that she had to leave the house. She knew she could not raise the finance to buy out the father and remain in the former home and she knew the terms upon which she needed to vacate and she knew the amount that she was receiving. The orders of 8 August set out the agreement and are self-explanatory. They note the father has to pay the mother in order 4 the sum of $170,000.00. That payment was to be made no later than 30 days after the father had given the mother notice of his approval of finance. This notice was subsequently given on 2 August by a letter on the same date. The count down period for the mother to cease having subsidised rental in the former matrimonial home, whilst the father made his application for finance and obtained the finance commenced to run on 2 August 2012. The relevant date being around 2 September.
The consent orders also provided that the capital sum was to be paid less the sum of $200.00 for each week or part thereof commencing on 11 July 2012 and concluding on the payment date or the date which the mother vacates the property at (omitted), whichever occurs first. The clause is a carefully worded clause drafted at a time when the mother was legally represented and occupying the house. The mother agreed to the terms which provided for her $200.00 per week rent up until she was paid the funds or moved out of the house whichever happened first. There is agreement between the parties that the funds were paid by the father to the mother on 12 September 2012. Notice, as I said, having been given on 2 August that the father had finance.
Effectively the mother was relieved from physically paying rent during this period as it was part of the consent orders that the $200.00 per week be deducted from the settlement sum. The date of 2 September was the date that the $200.00 per week was to end according to the provisions of notice regarding receiving finance provided for in the orders or earlier if the mother left. Effectively after 2 August when the father gave notice of finance approval the mother was on a count down to the end of her subsided rent of $200.00. The rental rate ceased when she moved out or when she got her funds, whichever happened earlier.
As events unfolded the mother did not move out when she received her payout from her property settlement.
As indicated in the orders after signing off on consent orders, a week later she wrote to request an interim advance on the agreed payment. The mother also wrote a text saying to the father on 28 August 2012, “I need some money to move,” which is page 46 of the annexures.
On 2 August the father wrote two separate letters to the mother. One says that the father is aware that the mother may be intending to relocate to (omitted) with X and on the same day the father’s solicitor responded to the mother that “our client has been given an indication that your client may be intending to relocate. The father expressly states that he does not agree with the indication given to him by the mother that she may be intending to relocate to (omitted) with X.” The mother is put on notice that if she moves the father will have no option but to make the necessary application to Court and the mother’s instructions are sought.
The second letter is to say that the father is willing for the mother to remain in the house for a short period of time after she receives the settlement funds which is the time that her $200.00 rent was to cease, and notice is given that the father has received finance. The mother corresponds via her solicitors on 15 August. That is the same day that the section 60I certificate indicates that the father was invited to attend at Relationships Australia for dispute resolution. The mother’s letter says:
During the course of these proceedings which I note the property proceedings our client has raised the prospect of her having to leave (omitted) if she was unable to secure the former matrimonial property in the property settlement.
The letter continues:
That since the property matters have been resolved our client has been looking for alternate accommodation in (omitted).
It says that the rental premises are very expensive, competition is strong:
She wants to stay here and whilst she has no present intention to leave (omitted) if she is unable to source appropriate accommodation for her and the children she will be left with fewer opportunities and they will include looking beyond the immediate area.
The father’s objection to the mother relocating is noted and the letter goes on to say that steps have been taken to arrange dispute resolution. The letter continues:
That in an abundance of caution steps have been taken to arrange dispute resolution. No doubt you will here from dispute resolution in the future.
A letter written on 15 August seems to be the very day, as I said, the father did not go to the mediation, presumably the mother knew this.
There is no evidence of the father being invited to a further mediation after this point and after those pronouncements. I make the observation that the mother’s own evidence seems to be that she invited the father to attend mediation, but this is in the context of her advising the father of 15 August 2012 that she has no intention of relocating. To put this assurance in context, there was then and still remains in place a restraint in which the mother has agreed that she will not relocate out of the (omitted) area unless agreed to in writing by the father, the same applies to the father.
On 4 September 2012 the day that the mother is sent or given the section 60I certificate, a further letter is written by the mother’s solicitor making reference to the mother attempting to put arrangements in place for herself and X. It advises that the mother has not had any success in renting appropriate accommodation in (omitted) and nor has she been able to secure a contract for the purchase of a suitable property here. I am not sure if she means in (omitted) or if this is supposed to be a reference to the house that the mother says she tried to buy in (omitted) or if in fact, the mother signed a contract on another house in (omitted). The letter states:
As you know rents in the (omitted) are significantly less up to 20 per cent less than rents for comparable properties in (omitted).

I note there does not seem to be any misunderstanding in these references by the mother as to what she understands is meant by (omitted) and what is meant by (omitted).
The letter written says that the mother is aware there may need to be changes to the current arrangements and that it is regrettable that Mr Cavanagh refuses to engage in discussion. This admission makes it clear the mother knew that if she moved such move would probably affect the time spent by the father with X. This change alluded to by the mother is specifically an issue referred in the definition of major long term decisions in consent orders which says:
Any proposed change to the child’s living arrangements that would make it significantly more difficult to spend time with the child’s parent.
The mother has taken matters into her own hands contrary to orders as has been raised by Mr Betts of Counsel for the father. Reference has also been made in that letter to the father involving the child in adult discussions such as the father telling the child that she will be moving out of the house.
On 26 September 2012 a letter is written by the father to the mother through solicitors noting that the father has complied with the order to pay the mother $170,000.00 and paid the sum to the mother’s solicitors on the 12^th, some two weeks earlier and requesting the mother to vacate by Friday 5 October 2012 giving the mother a further nine days to move out. Six days later on 2 October 2012 the mother through her solicitor writes to the father and informs the father that the mother has been offered housing in the (omitted) area. She has not been offered any rental in the (omitted) area that she could afford or that is within her budget.
The mother asked for further time to remain in the house and to look for other accommodation. By this point in time, I note that:
a)The father has on 12 September 2011 paid funds to the mother, a period of just short of three weeks prior; and
b)The mother has known since 18 July 2012, the day she signed the orders, that she would have to vacate the matrimonial home as she was transferring her interest to the father or if he could not get finance, it was to be sold.
Either way, she knew that she would be moving out of the house and she knew that the move could be coming in two months or so, a reasonable estimate if the father was to obtain finance. The mother also, I note, had signed the consent orders some 11 weeks earlier knowing the amount of capital funds she would receive and that she had a limited period for the subsidised rent to continue until as provided for in the consent orders.
Whilst asking for more time to remain in the property beyond the period of subsidised rent and beyond what had been anticipated in the scheme of the consent orders, (i.e., that the mother would move out when she got the capital), the mother also in that letter informed the father of an added request not provided for in the consent orders. The mother now proposed that when she moved out, that she wished to only have one move and not move to a place and then have to move to another place.
The mother informs the father (who by that stage has paid out to the mother a sum representing her interest in the former matrimonial home) as to the rent that she is willing to pay him. The mother nominates the sum of $380.00 per week as rent until she is ready to move out and she says that this is based on all she could afford. The mother says it is the same sum as the rental being charged in the (omitted). I note here that the rental the mother is talking about is $380.00 per week as being a sum she can afford, not $450.00.
The relevance of the figure of $450.00 will become apparent in these reasons. The mother has stated that she will stay in the house and told the father what the rent will be and asked if he wanted a tenancy agreement. This occurs after she received the property settlement paying out her interest in the former matrimonial home and transferred her interest to the husband.
I am not sure why the rental for the matrimonial home was to be assessed as if the home were in the (omitted) as it is quite clearly not in the (omitted). The mother though, says it is all she could afford. I am not sure that that is technically accurate as she had $168,000.00 in her possession or at her disposal along with weekly payments of child support for both children around $200.00 to $230.00 for X and $40.00 for Y as shown in her June financial statement, a total of $270.00 or so which is now, in her December financial statement, shown as $250.00 for Y plus $180.00 for X, a total of $430.00.
The mother also receives parenting benefits, around $304.00 in one week and $79.00 in the next as shown in her June 2012 financial statement being a total of around $380.00 plus what I have already referred to, the child support, giving a total of around $653.00 to $658.00. The December financial statement shows that the mother receives $375.00 plus $170.00 or $545.00 showing nil in salary or wages. She is receiving though, it seems, the same source of funds as her previous financial statement though they have been described differently.
In the different section of the income is described now as $875.00. This is not allowing any income at all from the mother’s business, (omitted) her children’s (omitted) business.
In correspondence and in her June affidavit, the mother makes references such as the rent in the (omitted) and says she needs significant funds from the father, otherwise she will relocate. The mother also speculates about where she might move making reference at one point in her material to the (omitted) or the (omitted) at the end of the correspondence stream. Those speculations by her are relied upon by the mother now as evidence of the father being informed of her intended relocation. There is an undercurrent in this conduct by the mother of her bargaining with the father through the property litigation to the effect that, “If you don’t pay me enough money, I will not be staying here with the children.”
This message seems to pay no heed to the legal obligations placed upon the mother that she was willingly entered into months earlier in February 2012 contained in consent parenting orders. Those orders provide a restraint that neither of them would relocate outside of (omitted) without the written consent of the other party.
The mother appears to have assumed that her status is not that of a tenant but rather of something of a hybrid between the ex-spouse and someone who holds an interest in the property. There are not too many tenants who get to nominate the rent they will pay to the landlord.
On 8 October 2012, the father says through his solicitor that he received a text message as referred to in a letter of 8 October 2012[1] from the mother saying that she was moving out of the house, that weekend. I note that this text message is said to be that she is moving out of the house not leaving (omitted). The father indicates, and in light of hearing this news that the mother is moving out “this weekend”, that he “will accept the sum of $380.00 for one week’s rent for this week only”.
[1] Annexure ARC12.
The letter then continues, “That if the wife should continue to remain in the house after this week then the sum of $550.00 is required for rent.” At this point the father has paid out the mother on 12 September 2012 and she had still not moved out of the house by 8 October nor given the father sole occupation of what is by that stage, his house.
The amount of rent of $550.00 to remain living in the house after the end of the week is a significant hike in rent, no doubt. It represents an end to the subsidised rent of $200.00 per week that the mother enjoyed whilst the father was obtaining finance as is set out in the scheme of the orders, in order to pay out the mother a sum representing her interest in the home.
It represents a commercial figure. I detect no suggestions from the mother as to how long it was that she intended to remain in the former matrimonial home, as a tenant, paying her $380.00 a week she asked for a tenancy agreement. I note that she had received the funds from the father, she agreed to $170,000.00 for almost by that stage, four weeks or 26 days, from the father. The father has complied with the property orders and the period of reduced rent and paid out the capital sums. The mother did not move out.
The mother did not wish to pay what the father said was the appropriate rent, a sum which the mother seems to agree was the market rent. On Wednesday, 12 October, the mother then writes to the father to say that she had entered into a tenancy agreement for a property in (omitted) at a rental of $380.00 per week. This is the first formal advice of the Mother leaving (omitted).
The mother puts the following justification for moving out: (a) she has to be out of the house by the following weekend, (b) she has to pay the $380.00 per week and then $550.00 (c) the father has reduced the child support he has to pay. I note reference to a deduction of $21.84 from $249.14 to $227.30 per week. This is, as I have said earlier was the first expressed advice I appear to have evidence of that the mother has actually secured rental and was in fact moving to (omitted).
The difficulty I have with the mother’s submissions in regard to her giving the father notice and the submissions to the effect that this move was inevitable, are that it seems that the mother considered if she mentioned to the father that there were difficulties she was having, that simply mentioning the issue was to put the father on notice that she was in fact going somewhere. As it can be seen from the history that I have canvassed that in fact the mother stated expressly in August 2012 that she had no intention of leaving (omitted) and she has agreed to orders restraining herself from leaving (omitted), without the written agreement of the father in February 2012.
The mother has set up a dispute resolution in case the arrangements have to change. A letter deposing to the purpose of the dispute resolution is written on the day that the father declined to have attended. I am not sure what the father was told when he was invited to attend and why he was being invited to attend. The mother knew there were orders restricting her relocating with the child without the father’s written agreement. The father had clearly stated earlier he did not agree.
The consent parenting orders also have reference to the parties agreeing to dispute resolutions if there are decisions to be made involving long term decisions.
The effect of the interpretation of how the scheme of orders and restraints combined as submitted by Mr Fellows of Counsel on behalf of the mother (who criticises the father for not attending dispute resolution when invited to do so) leads to an interpretation that the specific restraints on the mother from relocating are subject to the dispute resolution clause. The theory continues that the father’s failure to attend dispute resolution effectively enable the mother to excuse her breach of the restraint. This interpretation is achieved by reading the orders for the specific restraint down and elevating the requirement to attend dispute resolution in relation to long term decisions as relieving the mother from her obligations under the restraint. The father expressly stated his opposition on 8 October 2012 to the mother’s indications of her intention of or the possibility of her relocation.
In my view, a proper reading of these clauses is that if there is a long term decision to be made about the child which the parties can’t agree on, having exchanged their views about the decision, they will then attend dispute resolution. There is a specific injunction elsewhere in the orders. I do not read or elevate the dispute resolution requirement as taking precedence over the terms of a specific restraint. I do not accept that the father has to go to mediation required in regard to a long term issue, permits the mother to relocate in contravention of a specific restraint. The mother could have lodged an application to relocate if her circumstances were critical. She did not do so. On the material before me I am not satisfied that her financial situation was critical.
I note that given the restraint remains in place, the mother’s position at the hearing that she is in breach of a restraint. That is accepted by counsel for the mother. One asks then, why does the father have to attend mediation about what amounts to a breach of the agreed restraints. On the face of the material, the mother has acted in serious disregard of her obligations. I do not accept that the requirement for FDR was intended to apply to the restraint. I consider it applies to the Order in which it follows, that is the order for making joint decisions about matters regarding long term issues. After the first part of this interim hearing was conducted in November, I made further orders that the parties engage in a mediation in an attempt to resolve the dispute given that they had not made a genuine attempt to resolve the matter.
I also encouraged the parties at that time to think about the long term arrangements for the child’s living arrangements not just the interim arrangements. I was advised just prior to Christmas that the parties did engage in a mediation and that they failed to reach agreement. I directed that written submissions be provided after the mediation and in light of the additional material. Each party was given the opportunity to make any further oral submissions, and each indicated they were content to rely upon their written submissions. I have read the additional material filed and the written submissions received on Friday 21 December 2012, the last Court day of 2012 and prior to the Court closure until January 29 2013.
The mother also submits that father knew that a relocation was going to happen. If the mother does assert that then she must also accept that the father informed her expressly that he did not agree to those speculative suggestions in her letters. The mother also assured the father in her response letter that she would not relocate. The letters of the mother’s are written in September and October 2012, well after she invited the father to attend mediation back in August 2012.
Another issue that has been raised by Mr Betts of Counsel for the father in this matter regarding what the mother’s intentions were regarding relocating and her alleged reasons for having to relocate.
At the first part of this interim hearing it became apparent through a brief reference in the mother’s affidavit that the mother attempted to purchase outright a property in (omitted). The timing of this purchase is not known to me. It may or may not be time after the property consent orders were signed off and likely though not certainly after the children’s orders were finalised back in February 2012. The purchase referred to in the affidavit from the officer from (omitted) as well.
There is no explanation from the mother as to why it was she signed a contract to rent a house in (omitted) which is 130 to 150 kilometres outside of (omitted) without the father’s written agreement to relocate the child. This issue will, as suggested by Mr Betts, be explored on another day. It suffices to say that whenever the contract was signed, which will no doubt be explored at the final trial, it was signed with the knowledge of the restraints provided for in the consent parenting order and in the knowledge that the father had not agreed to the mother relocating to (omitted). It would therefore have been necessary for the mother to get the imprimatur of the Court to relocate the child. It seems that the mother was content to accept the consequences, both financial and legal, that the relocation might not be agreed to by either the father or the Court.
The mother’s case in this matter revolves in part to her being, as she puts it, forced from her home. This description in my view fails to acknowledge the legal position of the consent orders entered into. The mother fails to acknowledge her agreement to move out of the home and to sign over her legal interest in the home to the father in exchange for the father paying out a capital sum to the mother, representing her just and equitable entitlement pursuant to Consent Orders. It also overlooks the mothers’ own agreement that she would accept a subsidised rent for a set period. On the material before me, it is difficult to accept that she was, “forced from her home” given all of the circumstances and the funds the mother had available. Mr Betts for the father submits and I accept, that the funds paid to the mother were not funds which were sitting in a bank account accessible by the father, they were paid over to the mother as part of a term of the property orders having been borrowed by the father as part of his obligation under the property orders to effect a just and equitable division.
Having received the funds, the wife was in receipt of significant cash and the father was left to pay the additional borrowings increasing the father’s weekly commitments in his financial statement and as referred to in his material. The father has a caravan at (omitted) that he has paid for, and at the time of paying out the mother, he wasn’t in occupation obviously of the former matrimonial home, and he was going between (omitted) and his caravan in (omitted) whilst paying out the ongoing matrimonial debts. I note that on the mother’s financial statement she was not paying rent up until the consent orders were entered into.
I note that the mother’s solicitor of 12 October 2012 also inform the father that the mother has advised the school authorities that X will be removed from her school tomorrow. The letter informs the father that the mother has chosen X’s new school in (omitted). These decisions were all made singularly by the mother without; it seems any discussion or agreement with the father, the mother made these decisions despite her obligation to make joint decisions with the Father. In the context of orders for equal shared parental responsibility made eight months earlier in February 2012.
The letter concludes:
Our client proposes that X continue to spend time with her father during his days off as has been the case to date.
The mother through her Counsel suggests to the Court that no one really knows “what the term (omitted) District really means, and that it might be argued that the distribution of the (omitted) Council borders of the (omitted) Council might apply, and that they are far reaching and that whilst the (omitted) District is not included in the council border definition, if the (omitted) Council borders were considered it would have enabled the mother to move as far north as (omitted).”
Mr Fellows then submits if the mother had moved from (omitted) to the (omitted), then to move again on to (omitted) it would have been to only move a few kilometres further. I do not accept that this logic applies to what these parties could ever have intended, particularly when the parties included a clause in the orders that the they give each other notice if they even remove the child for 200 kilometres from (omitted) for a day trip. This requirement for notice is in addition to the restraint on either party relocating the child from (omitted) without the written agreement of the other party. Whatever county or shire the mother has moved to, being approximately 150 kilometres out of (omitted), she has significantly effected the operation of the orders providing for the child’s time with the father as anticipated in the Orders. This is in my view one of the pivotal issues in this application.
It is this type of scenario which was identified in Morgan & Miles[2] which involved a move by a primary parent in remarkably similar circumstances to this matter in that that mother moved 144 kilometres with the children. In Morgan & Miles, the learned Federal Magistrate ordered the mother on an interim basis to return to the town where she originally lived with the children pending the final hearing. It was held that the learned magistrate did not fall into error by failing to treat the move as simply that of a primary caregiver, requiring only consideration of an alternative contact arrangement to maintain the children’s relationship with the father pending a final hearing.
[2] [2007] FamCA 1230.

I note in Morgan & Miles (at paragraph 91) the consideration of whether different considerations apply if the proposed relocation is intrastate, interstate, or international or local. Boland J referred to the artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council. Her Honour said:
This leaves me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or the proposed move. The issues to be determined may be quite different, for example, for an infant or toddler developing attachments to those of older children or for economically impoverished families who have fuel costs that can be unaffordable but impeding maintenance of a meaningful relationship. Conversely there may be little impact on maintaining a meaning relationship between a child and non-relocating parent particularly if the child has a history of living predominantly with the relocating and spending time with the other parent. With alternate arrangements, the child’s relationship with the non-relocating parent can be maintained and fostered.
Sensibly, the legislation does not seek to define local, intrastate, interstate or international moves. Rather it requires a judicial officer to consider on a case by case basis the effect of a move on a particular child in determining the overall parenting application.
The mother contends in this matter that she had to move because she could not afford to stay in (omitted) and rent a house in the area within which she was living in (omitted) or effectively anywhere close by, or in fact in (omitted) or anywhere within 150 kilometres of (omitted). I understand that the mother does not have to give compelling reasons for her relocation. This mother has however relocated contrary to a specific restraint about not relocating the child’s residence and contrary to the provisions of an Order for equal shared parental responsibility requiring that the parties make joint decisions about the child’s place of living and education. The mother submits that she should remain in (omitted) as (omitted) is where she can afford to live.
The mother has conducted her case on the basis that although she agreed to the February consent parenting order at a time when both parties lived in (omitted) and all of the restraints and an order for equal shared parental responsibility which should have meant the parties decided together about issues of schooling and X’s living arrangements, she had to relocate because effectively she didn’t have sufficient funds to buy the matrimonial home and that she had intimated to the father more than once that this relocation would be the outcome if the father did not pay sufficient funds to allow the mother to buy the home. The mother’s affidavit on 1 June 2013 at paragraph 49 states:
The mother says at paragraph 49:
If I’m not allowed to remain in the house and pay off the existing mortgage I will not be able to stay in (omitted) because the cost of renting is higher than the minimum amount required.
She is referring to an amount of $372. She then says:
If I can’t afford to live in (omitted) I have no alternative accommodation. I would have to be moving away. I would be seeking to take the children with me. The only alternative is that Mr Cavanagh pay me a significant amount of money, sufficient to provide me with a deposit to enable me to secure a new loan.
I regard all of these comments as nothing more than contemplations and speculations.
The mother says the father asked her to move out so suddenly that she did not have sufficient time to find any rental accommodation close by and was therefore left with no alternative other than to relocate to (omitted). As set out earlier in these reasons, I do not accept that the father has forced the mother out of the house, given that she had agreed to the orders and she had a known period to explore her other options
The mother is not qualified to make references that she does about the percentages and rentals. I note also that the material filed by the mother refers to the mother having a boyfriend around the time when she was looking for rent and looking for houses to buy. The mother says in her material that that boyfriend has lost interest because of something that the father has done. Whether or not this person was a factor in the mother’s speculations will no doubt be explored at the final hearing.
The mother stated through solicitor’s correspondence following her move, that the contact for the father and child was to continue happening as it has been prior to the move. This suggestion shows little understanding or acknowledgement of the difficulties introduced and the likely actual reduction of the child’s time with the father given that the father has to travel around trip of some 280 kilometres just to collect the child. Any genuine consideration of that issue would have revealed very quickly that the distance introduced and the father’s roster presents each present serious difficulty in relation to handovers, distance, collection time, and the opportunity for the child to spend time with the father once the mother relocated.
Arrangements that can happen in and about (omitted) on both school days and non school days cannot happen when either parent has to travel a round trip of 280 or so kilometres to collect or return a child instead of driving around the suburbs of (omitted).
Mr Betts of Counsel made submissions that the Court ought not to hear the mother’s application to relocate as the parties entered into final orders only nine months ago. Mr Betts of Counsel contends that the mother has a serious Rice & Asplund issue and that there is ample evidence that the mother did not intend to comply with orders when she entered into them or that she was recklessly and carelessly indifferent. This is an inference that has been drawn from the material.
Mr Betts said also that it’s a significant matter for the mother to relocate in the face of a final order that does not permit her to relocate without agreement. I accept that that is so.
I have considered the submission in relation to the Rice & Asplund[3] argument and re-read the cases including Warnick J in the case in SPS & PLS,[4] and Rice & Asplund. Referring to it as a preliminary issue does not always mean it has to be decided prior to any other hearing. It can be heard as part of a hearing for changes to previous orders. These and other cases are often targeted at applications which are lodged shortly after orders have been made and where the applicants seek to reverse previous orders.
[3] [1979] FLC 90-725.
[4] [2008] FamCAFC 16.
Those judgments refer to reversing earlier custody orders and in doing so involving the child in ongoing litigation. Whilst in this matter there is no attempt by the mother to reverse the orders, there is an attempt to re-agitate the child’s living arrangements with the father and the rearrangement proposed by the mother involves consideration of an impediment not previously applicable, that is, the distance and the difficulties that the added distance involve in the time available to be spent between the child and her father. This is a significant consideration as is the effect of the diminution in the father’s time with the child.
I understand the philosophy behind the Rice & Asplund is to save endless litigation, children from the anxiety of ongoing litigation and applications being filed one hearing after the other which would mean different Judges hearing the same application previously conducted with possibly a different decision. In the long run, on a final basis, I am not sure that the father is seeking to reverse the final order however, the child is entitled to have a meaningful relationship with each of her parents. Even the father he is not seeking to be the primary resident parent, the mother cannot alone decide where the child will live and adopt the position that the father will have what ever time is then left possible, without having regard to the difficulties that her move has introduced and the effect upon the opportunity of the father and child to maintain their relationship.
I am not prepared, at this interim stage to make findings or dismiss the mother’s application based on a consideration of the Rice & Asplund issues having only had a hearing on the papers, with limited material and with no opportunity to hear the witnesses under cross examination and consider all the relevant matters at a final hearing.
Other issues have arisen during this application which caused me some concern and which will need to be determined as part of the mother’s final hearing for relocation. The mother’s capacity to parent has been raised by the father through his bringing to the Court evidence of the mother pleading guilty to a possession of LSD, seemingly found in her handbag, as per the annexure of the newspaper clipping. The mother has had an opportunity to explain to the Court the circumstances of her being found with LSD but has chosen not to do so. Mr Fellows of Counsel for the mother said the father does not appear to take issue with this development. I am not sure that this is so. The father has brought that evidence to the attention of the Court and through the course of a final hearing and the testing of evidence and hearing the mother’s explanations, it may be that the Court has cause for concern by this charge as well as the father.
Another issue raised by the father through his Counsel Mr Betts the seeming chaos in which the matrimonial home was left, issues regarding the mother’s mental well being when she says she took a Valium tablet and fell asleep which the mother asserts explains a house fire. Again, these are matters which require a full exploration at a final hearing. To some extent, the father is raising these issues as matters of concern yet also saying there is no valid reason to revisit the consent orders.
In approaching the application of the mother to relocate I will have regard to the relevant case law, including of Goode & Goode[5] and Morgan & Miles.[6] In terms of the mother’s relocation, the mother has already relocated when she came to this Court to seek an order that she be permitted to relocate. In determining this matter the Court is not confined to options that simply assume that she is to remain relocated. The Court can order the mother to return on an interim basis if it is in the best interests of the child to do so. The mother has indicated that she will return if it is determined by the Court that she should do so.
[5] [2006] FamCA 1346.
[6] [2007] FamCA 66.
The material relied upon by the parties is as read into the record. I received further material from the parties pursuant to Orders I made after the initial hearing date. Initially the material filed by the father made suggestions that the mother should not have difficulties finding rental accommodation. He attached newspaper ads and information provided on Google that the mother could move into a two bedroom unit, with two children and two dogs. I indicated that this style of accommodation for the mother with two children and two dogs may not be suitable or even offered to the mother.
I stated during the first part of this hearing that perhaps there is accommodation in a caravan park as well but the High Court seemed to suggest in MRR & GR[7] that this wasn’t an appropriate arrangement to have the mother and children living in under in poor circumstances whilst the father is earning a significantly higher income and living comfortably. The father also asserted that the mother didn’t have a problem about accommodation and that she could have, in his opinion, moved in with members of her family indefinitely.
[7] [2010] HCA 4.
Would the father really suggest that this is an appropriate accommodation and a child focused arrangement? Does he really imagine that I would make an order for her to move into the homes of other people? This scenario, in my view, holds so many difficulties. The father did not, in my view, really think this alternative through. The mother has since filed material attesting to the fact that neither of these relatives have the space or the opportunity to have the mother, children and dogs move in. I do not accept that moving two children and two dogs into the home of relatives is a sustainable arrangement.
Mr Betts of Counsel, submits that the mother was not in fact willing to take up accommodation that was available. The mother has obtained evidence of the difficulties she encountered in obtaining rental accommodation. After the first part of this hearing, having read all of the parties’ material, I was not satisfied that the Court had enough evidence from either party at that point to support the assertions being made on each of their behalves. I ordered that the parties file material giving the Court the evidence upon which their cases were actually based. I considered that both parties had hastily prepared material that did not assist me to make the decision I was asked to determine.
Having now read that further material and submissions, it seems that the mother’s alleged difficulties renting in (omitted) have been somewhat overstated. The mother has presented the Court with evidence of difficulties she encountered in meeting the requirements of proposed landlords asking for references, evidence of money in the bank and the mother having no income. The mother said she sent out various flyers and letters to try and find accommodation. Throughout her material, there is reference to her indicating she could afford to pay the rent at her new home in (omitted), as opposed to the rental she would have needed to pay in (omitted).
The mother says words to the effect, in her correspondence, that she is not wishing to move as she had family and friends there. Mr Betts of Counsel stated in the first part of this hearing that I should note that the mother’s attempts to find rental accommodation had been restricted to the areas that were suitable to her as referred to in the affidavit from Ms D of (omitted). This affidavit referred to identifying areas in which the mother was willing to live. The affidavit continued:
As part of the (omitted) interview process, we identified areas outside of the (omitted) greater region where housing more closely matched Ms Kennedy’s needs and affordability. In particular, the (omitted) and (omitted) areas were presented more options for her and there appeared to be less demand in that area with more properties listed, including those willing to accept pets. Accordingly, we then focused our efforts on that area.
Mr Betts of Counsel for the mother submitted that the mother was looking for areas out of (omitted) that were suitable, rather than in (omitted). The further affidavit material from the father filed in December encloses current advertisements for a variety of three bedroom houses in (omitted) with allowance for pets, as opposed to two bedroom home units with no pets. The solicitor for the father has contacted some of these rental agents and sworn an affidavit deposing to three bedroom homes being available and pets being allowed.
The option of rental homes contained in the material in (omitted) is quite expansive as seen at paragraph 18 of the father’s affidavit. The mother did not place this information before the Court when she had opportunity to do so. I note that the rentals on the houses referred to by the father range from $400.00 per week to $450.00 and prices in between.
At the first part of this hearing, the Court was under the impression, from the mother’s sworn material, that she had moved to a home where the rent was $380.00. The mother has made various references to her paying rent of $380.00 in (omitted) throughout her material. In what I regard as a non-disclosure of a material fact, the mother has now sworn evidence to the fact that her rent in (omitted) is not $380.00 per week but rather $450.00 a week.
Importantly at paragraph 13 of her December affidavit, the mother gives evidence for the first time that her rent is calculated at $450.00 per week but:
I receive government rent assistance of $70.00 per week, leaving me a net amount to pay of $380.00.
Counsel for the father had expressed in his written submissions in the strongest possible terms, criticism of the mother for being less than candid in her previous material and representations to the Court as to the amount of rent she is actually paying. All of her previous material spoke of rent as being the amount payable by a tenant to the landlord. Nowhere can I see reference to an explanation from the mother or in any of her comparisons for the evidence provided by (omitted) that the mother would be entitled to a rent subsidy or that her reference to paying $380.00 per week really amounts to her agreeing to a tenancy agreement for $450.00. As the reader of the mother’s material, I can indicate that I found the mother’s revelation of her actual rent to be at odds with the case that I understood she ran in the first part of this hearing.
The rent therefore that the mother can actually pay in (omitted) is $450.00 per week (which equates to her (omitted) rent). On that basis, it seems to me that the mother has failed to properly explore what rental properties are really available in and around (omitted). The figure the mother should have been inquiring about was $450.00.
The father’s offer of rent to the mother of a reduced rent is to be seen in the context of his explanation in the affidavit of his material, that he was also paying child support and he was paying the extra loan to generate enough capital. The offer for the mother to pay $380.00 and if she chose to stay on $550 per week, should be seen in that light. At the first part of the hearing, I inquired of the father what, if anything, he was prepared to do to assist the mother if in fact she is not able to afford to stay in (omitted), given he was asking for an order that she does stay in (omitted).
I made the observation that the father earned a significant income and that he should consider what support he could afford. The parties have been in a de facto relationship and there is the possibility of provisions for spousal maintenance. The father has indicated in his additional material that he can pay to the mother, on an interim basis, the sum of $70.00 per week to help her offset her rental. The mother has filed an application seeking an additional $250.00 a week from the father if she is to remain in (omitted).
Based on his financial statement, the father could not afford to pay such funds. The earnings of the mother are around $650.00 per week. The father is in a stronger financial position, however he has significantly more debt than the mother. In relation, also, to the allegation of the reduction of child support made by the mother as being a consideration for her relocating. I note that it is a reduction from $249.00 to $227.00. The father sought a reassessment from the agency and it has been approved. I note the mother’s fluctuating amount in family allowance and child support.
The father has continued to pay the combined debts and I am not sure that the mother fully appreciates his financial commitments. I do not see the reduction in child support for that amount of money in this whole scheme of things as being pivotal to the mother’s decision to relocate. I note that the mother raises in her material now the issue of perhaps having to break her lease and not getting a refund for the unexpired period of her tenancy. That consideration should be seen in light of the mother’s own decision to sign up to the tenancy agreement when she had the proceeds of property settlement. I note she received $100,000.00 and left $60,000.00 in a solicitor’s trust account according to correspondence, to see if it is required in regard to the relocation.

The mother has been sufficiently secure in her financial position to lend a friend $5,000.00. This risk of having to break her lease was always a risk once the mother up and moved out of (omitted) without the written agreement of the father. The mother also says in her affidavit that her work opportunities are better for her in (omitted) than (omitted). That submission should be seen in the context of earlier financial statements indicating as of June 2012 she has no income in (omitted) and that she has no income from her alleged business in (omitted).
The mother’s affidavit material says that she made a small income of up to $20,000 per year but that it has never provided her with an income to make her self-sufficient. She says:
I’ve always been reliant upon child support from my son’s father when my son has been living with us and from the applicant. Since we separated the applicant has paid child support.
I am not sure upon the basis upon which the mother says that she believes that there are more work opportunities in (omitted) than (omitted). It is simply an assertion. The mother is an (omitted) engaged at (omitted). She has taken steps to advertise and promote herself in (omitted). In my view she can easily do this in (omitted) as she has done before.
The mother says in her December affidavit that if she has to return to (omitted) that X will have changed her school and that she has settled in well and she is not subject to the bullying she had at (omitted) School. The record of the (omitted) School attached to the mother’s own material[8] shows that in regards to X’s overall behaviour, the school states:
At times X had some difficulty with peer interactions in the playground. These were usually only minor occurrences that were quickly rectified with teacher intervention. Better organisation of work materials would have helped X to start work promptly.
[8] Annexure TLK-4.
I do not have sufficient evidence before me to be satisfied that alleged bullying was ever a reason to remove X from (omitted) School or to satisfy me that she should not be re-enrolled there.
I will now turn to the relevant s.60CC considerations:

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

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

The child was born on (omitted) 2006. She has just had her 7^th birthday and was still six at the time of the application. I have no independent evidence of the child’s view. It seems that an incident has occurred in November in which the mother alleges that the father has told the child she would soon be living with him and not the mother. The views of a 6 or 7 years old in regard to any long term issue would be of limited weight, given the strong possibility of her not understanding the long-term consequences.

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

In looking at the nature of the relationship with each of the parents and others the child obviously has a close relationship with each of the parents and with her half-sibling. The current orders provide that some flexibility is required to enable X to spend special occasions with Y, her half-brother. X has always lived with her mother and in circumstances where her father has been away for regular periods working out of town.
I would expect that X has a close and loving relationship with her mother. The father says that the arrangements that have been in place have not caused X any difficulty. He has been spending regular time on his days off as best he can and in holidays and I would expect that X would have a loving relationship with her father.

S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

To participate in making decisions about major, long term issues in relation to the child; and

To spend time with the child; and

To communicate with the child.

The mother has recently excluded the father from being involved in making decisions about the child’s major long term issues. The mother and father have each regularly spent time with the child and communicated with the child.
The father allegedly said words to the child to the effect that he would not be living with the mother and her half-brother Y. The mother says she then decided that she would invite the child to speak directly to the father about it. The child, with the assistance of the mother, then phoned the father and left a message on the phone for the father. The mother said that the child told her that she would like to tell daddy that she did not wish to live in (omitted). I regard this decision of the mother’s as the most unfortunate and poor parenting decision. To allow a six or seven year old child to ring and leave such a message, if in fact this occurred directly involves the child in the firing line of the dispute between these parents. It seems that the child became quite distressed in leaving this message.
Using a child to convey such a message is emotional blackmail and it is at a time when the parties are locked into a dispute about the mother’s decision to relocate on an interim basis. It is alarming and not in this child’s best interests for this type of conduct to occur. Obviously the mother wants to move to (omitted). Her affidavit lists all of the reasons why she should stay. It was where she chose to go.
The child, who spends most of her time in the mother’s house would love her mother dearly. She would be likely caught up in her mother’s emotions and excitement or otherwise of wanting to move and the mother wants to stay there. I am not surprised to hear that this child would then say to her mother, if she did, that she wanted to stay in (omitted). This child should not be involved in this decision. I ponder how many other serious long-term decisions the mother leaves to this six year old or has the six year old expounding her views on.

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

Looking at the extent to which each of the child’s parents has fulfilled or failed to fulfil their parental obligations to maintain the child, I have already made some comments about that. It seems to me that the parties have each played their part in maintaining this child.

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

I have referred elsewhere to the difficulties of the father and child maintaining regular and frequent contact given the mother’s relocation. On the mother’s proposal, the time really possible for the father to spend time with the child is significantly decreased. At this time, on the material before me, I am not satisfied that there will not be an adverse consequence upon the child’s relationship with the father, given the interruption to regular time which would occur, the periods where there will be no contact and the irregularity of what is feasible for the father given his roster. I am not satisfied that the child and father relationship will be sustained on the current proposals of the mother.
The mother alleges that the child will suffer from returning to her previous school. On the material before me, I am not persuaded that this is the case.

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

The practical difficulty and expense of a child spending time with the other parent is a significant matter in light of the mother’s desire to live in (omitted). The distances required to be travelled to and from (omitted) preclude time being spent by the father on an afternoon after school and overnight to the next day on days that his roster provides for him to have week days as can currently happen when the mother and the child are living in (omitted). This, in my view, is a significant limitation on the time that X spends with her father.
This is particularly so also when the father’s roster is a rotating roster rather than static. By that I mean that he does not have the same four days off each week. These days are on a rolling schedule so the days vary from one period to the next. This means that now that X is at school and given that she is on the mother’s proposal to live in (omitted), there will be significant periods of no contact at all with X when the father’s days do not fall on a weekend. I should qualify that and say that that is unless the father drives an hour and half to (omitted) during the week (or a 3 hour round trip) he will not spend time with X or if he does it will be limited to after school or overnight if he spends time with X in (omitted).
For the father to drive the 140 or so kilometres and then pick up X from school and stay in a caravan park or motel means extra costs for him. There is also something of an artificial environment for X to be spending time with her father if he was to do so in that circumstance, staying in a motel or caravan park. The father would then be left spending the days in (omitted) waiting for X to finish school or alternatively driving back to (omitted) during the day, a 280 kilometre return, to return that afternoon. I have examined in detail the roster that has been provided for 2012 to see how it would play out in relation to the proposed orders sought by the mother.
It can be seen that on the document at page 50 of the annexures and as referred to by the father in his material, that he will only have two full weekends every two months in his roster. There are periods, for instance, starting at the top of that page where the father starts having off Monday, Tuesday, Wednesday. That would be restricted to after-school time in (omitted) if the father paid for accommodation in (omitted). The next time off was Monday, Tuesday, Wednesday, Thursday, a similar consideration. The next period of days off was Wednesday, Thursday, Friday, a similar consideration as the father’s last day off he would be heading back to his work so he would not be seeing very much of X on that occasion because he would be heading out.
There are some days where the father might get a Friday afternoon as part of his day off. There are two nights and some of Saturday, Saturday night and only some of Sunday, Friday nights and some of Saturday and other times where all the days fall during the week and so there is very limited time. I am very troubled about the diminution of time that is proposed by the mother on the orders that she is seeking. There are, as I said, parts of days and the beginning of days at the end of roster which would be difficult to see X and the father has to travel either before or at the end of his time which if it is his last day off will be very restricted.
I am concerned at this significant restriction of the quality and nature of the time that X can spend with the father on the mother’s proposal. On the father’s proposal the arrangement in the consent orders can continue. X can spend three out of four days with the father on each of his rostered days off and even if that is a school day it does not involve the travel and expense that is necessary if the child lives in (omitted) and it enables the child to live with the father in a home environment as opposed to hiring a motel or a van
If the mother were to pay $450.00 per week for rent in (omitted), it means she has no further added cost for fuel whereas in living in (omitted), the mother will incur costs of travel on the occasions that she is responsible for travel.

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

The other matters I need to consider are the capacity of either parent and the responsibility towards parenting. On the past arrangements the father has been content to accept that the mother is the primary carer. He has not had any significant issue obviously with her capacity to parent. Whether that remains so in light of the LSD offence or other matters he has raised, put forward by his Counsel, remains to be seen. Generally though I accept that the mother has the capacity to provide for the child’s physical care, to provide shelter and to provide for her educational matters and it seems to me that the father does too.
I have a reservation about the capacity of the mother to desist from involving the child in this litigation. As I will say further elsewhere, I also have reservations about the father and what he is saying to the child given what the mother alleges he has been saying to the mother. I am troubled by the allegations that each party make about their willingness to engage the child in this dispute. To do so is to ignore the potential harm for their much loved child and to place this child in an impossible position. In looking at the capacity of the father, save for this issue the mother doesn’t really make any serious complaint about that and the consent orders are obviously some proof that at least as of February this year each of the parties were content with those style of arrangements. The parties’ relationship appears particularly strained at this point in time.

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

I do not consider that this six year old or seven year old would have sufficient maturity to express any valid view about her long-term living arrangements. I intend to make an order that the mother and father are restrained from discussing this ongoing litigation with the child or allowing any other relative or friend to have such discussions directly with the child or in the child’s presence or hearing. I am also going to restrain the parties from discussing either party’s hopes and wishes as to where they would wish to live or wish the child to live directly with the child or in her presence or hearing or from allowing any other party to do so.

S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting Order under this Part will have on that right

I have nothing to add under this section.

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

In looking at the attitude towards responsibility of parenthood, I am critical of the allegations that both of the parties were involving this child. There appears to be a lot of hostility between these parties and there has been a lot of point scoring. The mother, however, in terms of her care of this child appears to have the requisite responsibility and I can’t (other than what I have just referred to), see in it much criticism of the father in relation to his parenting other than involving the child in this dispute and the mother would say demeaning the mother.
Most of the complaint seems to arise from the conduct in the aftermath of the mother moving out of the home and relocating. This issue has thrown up all manner of allegations and counter-allegations which I cannot determine. The father it seems has complied with his financial obligations for the support of the child. The mother’s drug conviction would seem to be a matter which may effect her responsibility towards parenthood given it seems it would suggest that she has acquired and had on her person an illegal and mind altering substance and that she has obviously then if that follows engaged in criminal activity in acquiring such illegal substance. In the fullness of time all of the details of this crime will be explored.
I am satisfied though that the mother still remains at this point, subject to any further evidence on that point and having the limited evidence I have as a person who can provide for this child.

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

There is an outstanding family violence order which is still in the process and there is a historical one. Whilst I note the family violence history though I do not know the nature of it will necessarily affect the orders that either party was seeking, I am factoring in the current position that the mother is currently waiting for a family violence order so that there are no family violence orders or findings at this time.

S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

the nature of the order;

the circumstances in which the order was made;

any evidence admitted in proceedings for the order;

(iv) any findings made by the Court in, or in proceedings for, the order;

any other relevant matter.

I have nothing to add under this heading.

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

The benefit to the child of having a meaningful relationship with both of the child’s parents; and

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

I am satisfied in this matter that the primary consideration which is that the child should have a meaningful relationship with each of the parents that it is appropriate for X to have a meaningful relationship with each of her parents.
In terms of protecting the child from physical, psychological harm or physical harm it is important in my view to remove the child out of the firing line between these two acrimonious parents.
The language used by the parents, the nature of the conflict where each of the parents are point-scoring even down to asserting that one solicitor or other always wins, tells me that these parties are locked into an ongoing dispute and that unless they can contain their hostility and point-scoring, this child will end up being an emotionally damaged child. Unfortunately this hostility is at the present time largely focused on the issues of property and money and relocation. The parties however have each previously agreed to equal shared parental responsibility and on an interim basis I do not see any need to alter that presumption.

Parental Responsibility

There are Orders currently in place for equal shared parental responsibility. There is no evidence at this time that would rebut the presumption.
In this interim hearing, I see no reason to alter the position of equal shared parental responsibility.
I have considered equal time and significant and substantial time. In terms of equal time, I am satisfied it is not practicable for this child to spend equal time and neither party is asking for it. There is no proposal for that to occur as the father is not available for equal time. The father works away on a roster out of town 100 or so kilometres away. His time is limited to the days he has off, allowing him to travel back to (omitted).
After the father has finished his last 12 hour shift he has to travel home from (omitted) along the (omitted) Highway back to (omitted). The orders currently provide for the father to have a period of rest and then spend time with his daughter. That arrangement has in my view been significantly impacted in a negative way by the travel requirements necessary as a result of the mother’s relocation.

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

I consider that the mother’s application to relocate is properly heard at a full and final hearing where all of the evidence is tested and a proper exploration is made of the proposed arrangements for the child and all of the allegations are properly examined.
In the matter of Morgan & Miles[9] reference and approval is made to made to principals in C & S.[10] Essentially Justice Warnick stated the issue of relocation is a matter in which the case law makes it very clear that it is a significant matter and it is not a matter which ought to be determined on hastily prepared material. It is not for one party to relocate and to unilaterally decide where a child is living. Relocation decisions are difficult decisions and they are best made after a considered hearing and hearing all of the evidence.
[9] [2007] FamCA 1230.
[10] [1998] FamCA 66.

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

I am satisfied that the mother will find accommodation in and around the city of (omitted) in the figure of around $450.00. By this I do not mean (omitted), (omitted) or (omitted). I mean the city of (omitted) and its suburbs. Given that the mother can afford $450.00 per week and she will obtain a rental subsidy of $70.00 plus an additional $70.00 from the father on an interim basis, I am satisfied that there is no impediment to her paying rental in (omitted). I intend to make an order that the mother do all acts and things to relocate the child’s residence to the city of (omitted) or the suburbs of (omitted).
I intend to order that the mother do all acts and things to re-enrol the child at the (omitted) School where she has previously attended and the mother can effectively choose wherever she wishes to live within the city of (omitted) and its suburbs. If there is to be a change of school for this child, such a decision is to be made by both parents, not by one. I am satisfied, as I have said, that the proposal that is in X’s best interests is for the mother to return to live in (omitted) and for X to spend time with the father on the same terms as the existing consent orders.
I am obviously very troubled about the diminution in time to be spent by the father and X on the mother’s proposal and I am obviously trouble by the expense and difficulty in the travelling and the re-arranging of time and the effect that this is going to have on the child’s relationship with the father and the opportunities and the quality of time that X could be spending with her father. In terms of the timeframe.

ORDERS DELIVERED

The mother is to now make all arrangements to move. I am expecting her to be there by the 15^th which I regard as sufficient time. If she is all but moved I do not expect to have a contravention application because she is waiting 10 days for a house to be available. If there is difficulty about the timing after the 15^th I give liberty to apply to have the matter relisted before me.
The orders of 15 February are the operative orders. I give you leave to both forward into me the future directions sought to have the matter ready for trial if the mother is to proceed with her application.
I am satisfied that there is a very hostile and intractable conflict and I had contemplated an Independent Children’s Lawyer. In terms of the criteria in Re K.[11] I have an intractable conflict and a child who has been overly involved in my view, both parents and I am satisfied that it is appropriate to appoint an Independent Children's Lawyer.
[11] (1994) FLC 92-461.
I have considered all of the matters referred to in these reasons and I am satisfied that the orders which are in this child’s interests are the orders in the same terms as the orders made in February 2012. I am aware that the father is not proposing to be the primary parent on a final basis but nonetheless the decision to relocate is a significant decision and, as has been decided in Morgan & Miles, these decisions ought only be made after the benefit of a final hearing. The father has offered to pay the mother $70 per week on an interim basis and I consider in the circumstances that it is appropriate that he do so.

I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Judge Willis

Date: 17 July 2013

[2013] FCCA 345

15 March 2013

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