CH and TW - [2006] FMCAfam 607

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CH & TW

[2006] FMCAfam 607

FAMILY LAW – Parenting – relocation – application by mother to relocate from Sydney to Sunshine Coast, Queensland – child 6 years – poor communication between parties – consideration of whether meaningful relationship with father may be improved if mother permitted to relocate – mother permitted to relocate child’s residence.

Family Law Act 1975

A & A: Relocation Approach (2000) FLC 93-035
AMS & AIF; AIF & AMS (1999) FLC 92-852
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Bolitho & Cohen (2005) FLC 93-224
H & W (1995) FLC 92-598
Jones v Dunkel(1959) 101 CLR 298
R & R; Children’s Wishes (2000) FLC 93-000
U v U (2002) 211 CLR 238

Applicant:

Respondent:

File Number:

PAM 1522 of 2002

Judgment of:

Sexton FM

Hearing dates:

4, 5 and 8 September 2006

Date of Last Submission:

8 September 2006

Delivered at:

Sydney

Delivered on:

10 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr D Dura

Solicitors for the Applicant:

Constantine G Pavlis & Co.

Solicitors for the Respondent:

Browns The Family Lawyers

ORDERS

All previous parenting orders be discharged.
Subject to Orders (14) and (15) herein, the mother have sole parental responsibility for the major decisions concerning the child BDH, born 2 August 2000 [referred to herein as “Jack”].
Each party have sole responsibility for making decisions about other aspects of the care, welfare, development and parental responsibility of Jack on a day to day basis during periods when Jack is in that party’s care.
The mother be permitted to relocate Jack’s residence from the Sydney Metropolitan area to the Sunshine Coast in Queensland from 5 January 2007.
Jack live with the mother.
Jack spend time with the father as follows:
(a)Each school holiday period at the end of Terms 1, 2 and 3 commencing in the first Queensland school holiday period in 2007, from the first Sunday of the school holiday period arriving at Sydney airport by midday until the Tuesday of the week prior to the commencement of the new school term returning to Maroochydore airport by no later than 5.00p.m.;
(b)During each Christmas school holiday period for a period of 3 weeks from 26 December in years ending in an odd number and from 23 December in years ending in an even number, commencing in the Christmas school holiday period in December 2007 arriving at Sydney airport by midday on the first day of the period and returning to Maroochydore airport by no later than 5.00p.m on the last day of the period;
(c)For one weekend during each school term commencing Term 1 2007 from Friday afternoon when Jack will arrive at Sydney airport before 7.00p.m. until Sunday afternoon (or Monday afternoon, if a public holiday) when Jack will arrive at Maroochydore airport by 5.00p.m, such weekend to be agreed between the parties by no later than the end of the first week of the relevant school term and failing agreement by that date, such weekend shall be the fifth weekend of the school term;
(d)In the event Easter falls outside the Queensland school holidays, on the Easter weekend in each year ending in an even number from Friday, arriving at Sydney airport no later than midday until Tuesday afternoon, arriving at Maroochydore airport no later than 5.00p.m.;
(e)In the event the mother travels to Sydney, the mother give the father notice as soon as practicable but not less than 7 days in advance of her travel and the mother ensure Jack spends as much time with the father as practicable during her time in Sydney;
(f)In the event the father travels to the Sunshine Coast, the father give the mother notice as soon as practicable but not less than 7 days in advance of his travel and the mother ensure Jack spends the whole of the period the father is on the Sunshine Coast, with the father; and
(g)At additional or alternate times as agreed between the parties.
For the purposes of Jack spending time with the father in accordance with Order (6) herein, the mother meet the whole of the costs of airfares between Sydney and Maroochydore until the commencement of first Term 2008 and thereafter the mother meet the cost of airfares from Sydney to Maroochydore and the father meet the cost of airfares from Maroochydore to Sydney noting the costs incurred by the father for Jack’s travel may be taken into account in determining his child support liability for Jack.
The mother arrange Jack’s transport to and from Maroochydore airport and the father arrange Jack’s transport to and from Sydney airport.
Unless otherwise agreed between the parties, Jack spend the following additional time with the father:
(a)For the first two of every three weekends from midday Saturday until 5.00p.m. Sunday from the first weekend after the making of these orders until the commencement of the Christmas school holiday period in 2006;
(b)
From Saturday 23 December 2006 at midday until Monday

25 December at 2.00p.m.; and
(c)For a period of seven days from midday 28 December 2006 until 5.00p.m on 4 January 2007 and for a period of seven days from midday 20 January 2007 until 5.00p.m. on 27 January 2007
when the mother will remain in Sydney for all periods Jack is with the father and the mother will collect and deliver Jack from the father’s residence at the commencement and conclusion of his periods with the father, unless alternative arrangements are agreed between the parties.
Each party facilitate Jack telephoning the other parent at any reasonable time but Jack communicate with the father by telephone at least twice each week, when Jack shall telephone the father on one occasion, being Sunday at 7.00 pm. unless otherwise agreed, and when the father shall telephone Jack on the other occasion, being Thursday at 7.00 pm. unless otherwise agreed.
Each party facilitate telephone communication between Jack and the paternal grandparents at any reasonable time, but the mother ensure Jack is available to receive a telephone call from the paternal grandparents once a week, being a Friday at 7.00p.m. unless otherwise agreed.
The mother install computer equipment at her premises within 28 days of her change of residence to the Sunshine Coast with access to email and a webcam for the purpose of the father having email and live webcam communication with Jack.
The mother place at least one “4 x 6” framed photograph of Jack and his father in a prominent position in her residence within seven days of her change of residence to the Sunshine Coast.
The mother forthwith enrol Jack to commence at MPS from the commencement of the 2007 school year and thereafter the mother be restrained from changing Jack’s school until the completion of his primary school education unless the parties otherwise agree in writing to a change in Jack’s school.
The mother consult the father in relation to Jack’s secondary schooling and the parties make the decision about Jack’s secondary schooling in consultation with each other.
Each party ensure the other knows the whereabouts of Jack and his contact details if Jack is staying away from either party’s residence for more than 2 nights, to increase to 4 nights when Jack is 10 years old.
The parties keep each other informed and updated in relation to any medical issues involving Jack, including providing each other with the names and full contact details of all medical practitioners attended upon by Jack and each party provide his/her authority for the other parent to communicate with all medical practitioners attended upon by Jack from time to time.
This order be sufficient authority to provide the father with Jack’s school reports, dates for sports days, parent/ teacher nights, concerts and other events and/or any other information from MPS or other school Jack attends in accordance with these orders and that each party be at liberty to attend any and all activities to which parents are invited to attend.
Each party keep the other informed of any and all extracurricular activities engaged in by Jack and each party authorise the other to communicate with and obtain copies of all relevant information concerning such extracurricular activities from the organisers of same, and each party have liberty to attend at all Jack’s extracurricular activities in which he may be involved.
The mother provide the father with a written report of Jack’s progress, health and activities in May and October each year.
The mother ensure Jack is given any cards, letters, gifts or other items sent to him by the father or members of the father’s extended family, as soon as any such item is received.
Each party attend a post separation parenting program, ensuring the following:
(a)The program selected covers the importance of communication for separated parents and the impact of conflict on children of separated parents; and
(b)Each party provides a certificate of completion of that program to the other party by 30 April 2007
and IT IS NOTED that Centacare Campbelltown provides such programs and Centacare Brisbane provide an outreach service to the Sunshine Coast but neither party is bound to use those particular services.
Neither party make derogatory comments about the other party or members of the other party’s family to Jack or to any person in the presence or hearing of Jack and each party ensure their only comments about the other party or members of the other party’s family in the presence or hearing of Jack are positive.
Neither party remove Jack from the Commonwealth of Australia without the written consent of the other party, such consent not to be unreasonably withheld.
Each party keep the other informed at all times of his/her address, landline and mobile telephone number.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

PAM 1522 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

This case concerns parenting arrangements for Jack aged 6 years. The mother proposes relocation. The mother was 17 and the father 19 years of age when Jack was born and separated when Jack was 3-4 months old. The parties have lived in Sydney since Jack was born and continue to live in Sydney. The mother wants to relocate with Jack to the Sunshine Coast in Queensland at the end of December 2006 to be with her mother and extended family. The mother’s parents, with whom Jack has a close relationship, have moved from Sydney to the Sunshine Coast. The father opposes the move but agrees that Jack should continue to live with the mother. The parties do not communicate effectively and do not consult about decisions concerning Jack. Changeover is strained. The parties’ mothers do not communicate, both critical of the other parent.
The mother asks that Jack spend time with the father for 10 days in each short school holiday period, for a period of 4 weeks in the Christmas school holidays, being 2 periods of 2 weeks in the 2006/7 Christmas holidays and for long weekends. She seeks an order that Jack travel to Sydney by air to spend time with the father and that she pay all costs of travel. She seeks an order that Jack communicate regularly with his father by telephone and other electronic means. The father does not say what time he proposes Jack spend with him if Jack lives in Queensland.
The current parenting orders of November 2001 provide for Jack to live with the mother and to spend time with the father on alternate weekends from 12 midday Saturday until 5.00p.m. Sunday and for half school holidays. The father asks for the present arrangements to continue.
The parties agree that Jack has found it emotionally difficult to spend too much time away from the mother and both parties have endeavoured to accommodate his needs. Consequently, Jack has had rare periods of block time with his father and only one extended separation of 2 weeks away from his mother when he spent most of his time with the maternal grandmother. The father acknowledges “four or five days is long enough for Jack”. The mother told Ms Taperell, the family reporter, that Jack often rings her and cries when spending time with the father. The parties have also varied the parenting arrangements to suit their own needs though are in dispute as to who usually seeks the change. However, there is no dispute that for the most part, Jack has had regular time with the father in accordance with the 2001 orders and that he spends time with his paternal grandparents when with his father.
The mother says she will have the advantage of stable and secure accommodation for herself and Jack on the Sunshine Coast where she can live rent-free in her grandparents’ home. She will have the support of her mother and step-father who are living in her grandparents’ home. She deposes to having been offered employment near her home if she moves to Queensland. She tells Ms Taperell she is socially isolated in Sydney and the people she feels closest to are in Queensland. She says she cannot afford to stay in Sydney as rents are high and she has been forced to move when her rental properties have been sold. She says she has suffered recurrent bouts of glandular fever for the last two years and her mother has been returning to Sydney regularly to assist her with Jack.
At times the mother’s attitude to the father’s parenting was equivocal. The mother is highly critical of the father’s parenting though says
“I am not saying he is not a good father.” She believes the father drinks alcohol to excess when Jack is with him, takes Jack to pubs, smokes in front of Jack, has taken Jack to a tattoo parlour, does not give him a bath and allows his toys to be broken while Jack is in his care. She believes the father puts his own needs ahead of Jack’s when Jack is with him, often leaving Jack with his mother. She says the father’s premises are dirty and Jack does not have his own separate bed there. She is concerned about Jack’s safety because the father has a pit bull terrier and takes Jack dirt bike riding, sometimes without protective clothing. She says Jack is often bored when with his father and rarely mentions his father between visits.
The father says Jack has developed a good relationship with him particularly in the last two years and they enjoy dirt bike riding and other activities together. He says Jack loves his parents and gets on well with his new partner. He says Jack will not cope emotionally with extended periods away from the mother, as proposed by the mother and Jack’s relationship with him will be diminished if he is not living in Sydney and seeing him fortnightly. The paternal grandmother reports the father saying to her “how can I be a father to Jack if he lives in Queensland?”
Ms Taperell found both parents immature, relying heavily on their own mothers to help them care for Jack. Ms Taperell supports the mother’s move to the Sunshine Coast because it will give Jack stable accommodation and the mother and Jack will have family support:
It appears that the mother would benefit both emotionally and financially by her proposed relocation to Queensland, where she can provide a more supportive home environment for the child. Such a move would inevitably reduce the frequency of the child’s direct contact with the father, who understandably wants the child to remain in Sydney. In this case, both parties’ proposals have some merit, but on balance the mother may be better placed to meet the child’s basic need for long-term stability if she can relocate to Queensland.
The father is 25 and the mother is 23. They started living together with the mother’s mother in 1998 when 15 and 17 years of age. Jack was a few months old when they separated and has always lived with the mother. The parties agree that initially after separation Jack spent very little time with the father but the position changed when he was about 15 months and orders were made.
The father works as a tree surgeon on a contract basis. As he must take work when offered, he cannot always predict his availability for Jack. The father is in a relationship with Ms
Thomas and they are now living together in the western suburbs of Sydney. Ms Thomas is a TAFE student and they are expecting a child in January 2007.
The mother is studying finance at TAFE and supports herself and Jack on Centrelink benefits and child support of $220.00 a month from the father. She has not worked in the paid workforce since Jack was born. Although the mother says she has a friendship, not a romantic relationship with a Mr Chester, she says they have no plans for the future and she does not expect him to relocate with her. She is presently living in a Community Housing Programme within walking distance from Jack’s school. Her lease expires on 12 December 2006 and she is not certain whether or not she can extend the lease.

Legal principles

His Honour Justice Kirby in the High Court decision of AMS & AIF; AIF & AMS (1999) FLC 92-852 said (at paragraph 142):
…each [relocation] case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression…
Parenting orders are governed by Part VII of the Family Law Act 1975. When making a parenting order, section 61DA of the Family Law Act requires the court to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for their welfare. Section 65DAC provides that all decisions about major long term issues be made jointly by those who share parental responsibility. Major long term issues are defined in section 4 of the Act as education, religious and cultural, health, name and significant changes in living arrangements. The application of this presumption triggers the application of section 65DAA (1) which requires the court to:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide for (including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides that if the court does not make an order for equal time, the court must consider whether the child spending significant and substantial time with each parent would be in the best interests of the child and whether such an arrangement is reasonably practicable. Substantial and significant time and reasonable practicality are defined in section 65DAA(3) and (5).
Section 60CA provides that the child’s best interests are the paramount consideration when considering particular parenting orders and to determine the child’s best interests the court must consider the primary matters set out in section 60CC(2) and the additional matters set out in section 60CC(3). Section 60CC(4) requires that the court consider the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Section 60CC(4A) provides that if the parties have separated, the Court must have particular regard to events that have happened, and circumstances that have existed, since the separation occurred. Section 65D provides, subject to the presumption of equal shared parental responsibility, that the court may make such parenting order as it thinks proper.

As the Full Court held in B and B: Family Law Reform Act 1995 (1997) FLC 92-755, relocation cases are not a separate category within the Act to be determined by their own principles and rules. Each is a case under Part VII relating to the best interests of the children. The Full Court in A & A: Relocation Approach (2000) FLC 93-035 stated the guiding principles to be applied in relocation cases[1]:
a)The best interests of the child are the paramount consideration but not the sole consideration;
b)A court cannot require the applicant to demonstrate “compelling reasons” for the relocation;
c)The court must evaluate the competing proposals presented and weigh up the advantages and disadvantages of each for the child’s best interests;
d)This should not be done in a way that separates the issue of relocation from that of residence;
e)The court must weigh the evidence as to how each proposal would hold advantages and disadvantages for the child’s best interests; and
f)The court must refer to the principles underlying the objects of the parenting provisions of the Family Law Act and the relationship between those principles and the factors which must be considered when deciding what orders are in a child’s best interests.
[1] As summarised in the Family Law Council, Discussion Paper: Relocation (Feb. 2006), Commonwealth of Australia, pp.10-11.
The Full Court in A & A then set out a 3-step summary of the correct approach to be applied in cases involving a proposal to relocate the residence of a child[2]:
[2] Ibid, pp10-12.
a)Identify the competing proposals of the parties;
b)Explain the advantages and disadvantages of each proposal by examining the section 68F(2) factors (now the section 60CC factors) with regard to the objects of the parenting provisions of the Act, which includes an evaluation of the “reasons for relocation as they bear upon the child’s best interests” against other factors; and
c)Explain why one proposal is to be preferred having regard to the best interests of the child as the paramount, but not sole consideration.
The High Court in U v U (2002) 211 CLR 238 modified the approach in A & A when Gummow and Callinan JJ said:
We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question… the objective is always to achieve the child’s best interests.
In Bolitho & Cohen (2005) FLC 93-224 the Full Court said:
We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A & A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant section 68F(2)factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.

The competing proposals

The High Court has held that the court is not confined to the proposals of the parties when deciding a relocation case[3]. I invited both parties’ legal representatives to submit as to whether the court should consider options other than those put by each party. I raised the option of the father also moving to the Sunshine Coast. However, the father stated he would not relocate to the Sunshine Coast, whatever the orders of the Court. Both legal representatives agreed the only realistic options were those sought by each party.
[3] AMS & AIF; AIF & AMS (1999) FLC 92-852 and U v U (2002) FLC 93-112
The mother wishes to relocate with Jack to the Sunshine Coast in Queensland to live with the maternal grandmother and step-grandfather in a home owned by the maternal great-grandparents. She says there is a 2-bedroom flat under her grandparents’ home with a separate entrance and she and Jack can live there rent-free. It is close to the beach and to tennis courts. The mother says she will have support from her mother, her stepfather and her large extended family. Jack will have the benefit of spending time with his cousins and will enjoy a much more relaxed lifestyle than he does in Sydney. The mother proposes to enrol Jack in MPS and to enrol him in the local soccer club with his cousins. She says she has an offer of a position as a personal assistant in a company situated about five minutes drive from her proposed residence. The mother says she can ensure Jack continues to spend regular time with his father as in the past and will set up equipment to enable Jack to communicate regularly with his father by email and webcam. Recognising Jack’s reluctance to spend more than a few days away from her, the mother says she has made arrangements with a friend so she can stay in Sydney when Jack initially travels to Sydney to spend time with his father, so Jack will have access to her if necessary. She believes when Jack is settled in his new home, he will soon adjust to the new arrangements with his father and to longer periods away from her.
The maternal grandmother and Mr Smith, the maternal step-grandfather are now living on the Sunshine Coast. They married in April 2006 after a long relationship. Mr Smith is a consultant for Aboriginal land owners and permanently relocated to the Sunshine Coast in April of this year. The maternal grandmother moved from Sydney to the Sunshine Coast in March 2005 to care for her mother who was ill and too much for her father to manage.
Both the mother and the maternal grandmother were carefully cross-examined by Mr Brown for the father, as to the details of the mother’s proposal and the maternal grandmother’s motivation for the move. It is not contested that the maternal great-grandmother has been seriously ill for many years and may not live for much longer. It is not contested that the maternal great-grandfather needs assistance with his care, though there was some disagreement from the father as to the extent of his dementia. The mother and the maternal grandmother concede that there is no cast iron guarantee that some time after both the great-grandparents die, their home may have to be sold, and there is even a possibility the home may have to be sold in the maternal great-grandfather’s lifetime. However, the maternal grandmother believes she will be able to remain in her parents’ home until well after her father’s death which may be many years from now. There was no evidence before me from the maternal grandmother’s brothers as to their attitude to the proposed accommodation arrangements for the mother and Jack. Mr Brown for the father argues that the maternal great-grandparents should have provided affidavit evidence to verify their support for the mother’s proposal. He submits that on the authority of Jones v Dunkel[4] the Court should infer that the maternal great-grandparents’ evidence would not have assisted the mother’s case. I am not persuaded I should draw such an inference. I am not satisfied either of the maternal great-grandparents would be in a position to participate in these proceedings given their age and their health problems.
[4] (1959) 101 CLR 298
The maternal grandmother deposes to moving to the Sunshine Coast in March 2005 to assist her ailing mother. She also deposes to continuing to care for her in the great-grandmother’s home. In fact she gave details of the nursing assistance she had arranged for her mother in her home. In August 2006 the mother deposes to the maternal grandmother and Mr Smith living with the maternal great-grandparents and the mother being a full time carer for the maternal great-grandmother. In cross-examination it became clear that this evidence from the mother and maternal grandmother was not accurate. The maternal great-grandmother has been in a nursing home since 21 December 2005 and is bed-ridden. While I accept that the maternal grandmother is her mother’s main support and has a central role in the management of her parents’ care, I find the mother and the maternal grandmother’s evidence on this issue reflects adversely on their credit. However, I am not persuaded that the maternal grandmother’s motivation for moving to the Sunshine Coast or the level of her involvement in her parents’ care is critical to the issues I must decide. I am satisfied that the mother does have rent-free accommodation available to her on the Sunshine Coast in the maternal great-grandparents home.
The father’s competing proposal is that the status quo continue. The father wants the mother and Jack to remain living in Sydney so Jack can continue to spend time with him each alternate weekend from midday Saturday until 5.00p.m. Sunday and for half school holidays. The father says he has not considered asking for Jack to have more time with him because he often has to work on weekends and Jack might fret for his mother. He does not seek any time with Jack on weekdays. The father does not submit a proposal as to what time Jack should spend with him in the event the mother is permitted to relocate with Jack to Queensland. He says he has not addressed his mind to it. The father says he will not relocate to Queensland himself, whatever orders are made because of his work, his close ties to his parents and extended family and his new de facto partner.

Evaluation of each proposal against the child’s best interests having regard to the principles underlying the objects of the Act

The objects of the parenting provisions of the Family Law Act, set out in section 60B of the Act, are to ensure that the best interests of children are met by (in summary):
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that a child has the right to know and be cared for by both his parents; has a right to spend time on a regular basis and communicate on a regular basis with both his parents and other people significant to his care; and parents jointly share duties and responsibilities concerning the care, welfare and development of their child.
As already noted, in deciding the arrangements that will promote the best interests of a particular child, the court must consider the matters set out in section 60CC (2) (3) and (4) of the Act as far as relevant in the circumstances of each case. The primary considerations I must consider are:
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.

The benefit to Jack of having a meaningful relationship with both his parents

Each party says Jack’s relationship with the other parent is important to Jack’s development and that Jack has a strong relationship with the other parent. The father accepts Jack is most closely attached to the mother but believes Jack’s relationship with him has strengthened in the last 2 years. The father is concerned that if Jack moves to Queensland his relationship with him will deteriorate. Ms Taperell says if the mother moves to Queensland, she would hope Jack’s relationship with the father would not deteriorate and that Jack can continue to enjoy the same “good and positive relationship” with the father. She says in oral evidence:
If the mother were to move after the next Christmas holidays, then a six year old child should be able to cope with reasonable time with the other parent and have a well developed sense of who the other parent is and have enough language and cognitive ability to be able to talk to the other parent on the telephone and conduct those sorts of conversations. So it doesn’t …have to lead to deterioration in the relationship.
The father complains that the mother has not always facilitated Jack’s contact with him. He says he had to take the mother to court to enable Jack to spend time with him, and was forced to initiate contravention proceedings to ensure the mother’s compliance with the orders. The father says the mother denies him the opportunity to participate in decision-making, tells lies about him, hangs up on him when he tries to talk to her and criticises him unnecessarily for trivial matters which arise when he is caring for Jack. The father says “I won’t have a leg to stand on” if she is in Queensland. Under the present regime he believes he can preserve and develop the father/son relationship, however the mother behaves.
The father does, however, concede that despite her criticisms of his parenting style, the mother has ensured Jack has had the opportunity to spend regular time with him which has led to their positive relationship. The father makes no recent complaint about the mother refusing him time with Jack. On the contrary, he says the parties have managed a degree of flexibility in the arrangements and at times Jack has spent additional time with him to that provided in the orders. In my view, this is significant because it shows the mother recognises the importance of this relationship to Jack, whatever her own views of the father. It is noteworthy that the father does not ask the court to increase the amount of time Jack spends with him. He is content with the present arrangement which allows for Jack to see him overnight only once a fortnight and for relatively short periods in his school holidays.
Ms Taperell believes the continuing strength of the relationship between Jack and his father would largely depend on how the parties promote any changed arrangements to Jack. She says it is important for Jack to see his father regularly. If Jack moves to Queensland, Ms Taperell recommends Jack spend at least half his holiday time and one weekend each term with his father. A gap of for example, 3 months would probably in her view, be detrimental to the relationship. Presently Ms Taperell finds Jack suffers from anxiety. She believes if moving to Queensland would give Jack a stable home base with his mother, his anxiety is likely to lessen and his relationship with his father may well improve.
I agree with Mr Brown’s submission that there is a risk that the mother will not promote Jack’s relationship with his father if she moves to Queensland. However, I agree with Ms Taperell that the mother is equally able to obstruct the relationship if Jack continues to live in Sydney. Recent history suggests the mother does recognise the importance of Jack’s relationship with his father and paternal family.
I am not persuaded that a deterioration in Jack’s relationship with his father will inevitably result from a change in the parenting regime as proposed by the mother. While Jack would see his father less frequently under the mother’s proposal, he would spend as much time with him as he does under the existing orders, possibly more time given Jack does not spend half his holidays with the father at present.
Even though contact is now being reasonably managed, I am not satisfied the parties are presently promoting Jack’s relationship with the other parent. I find their approach to each other is immature and volatile. They are not demonstrating a focus on Jack’s needs ahead of their own. They are highly critical of each other. They do not trust each other. There is no evidence to suggest this situation is likely to improve with the mother living in Sydney and the parenting arrangements staying as they are.
I am persuaded there is some chance the mother’s attitude to Jack’s relationship with his father will improve if she is permitted to relocate. There is little doubt she will be happier living near her mother and her extended family. I am also satisfied she will have better financial security, more chance of employment and more secure accommodation. This may enable her to cooperate more sensibly and constructively with the father. I am also persuaded that Jack is likely to benefit from blocks of time with his father, away from the influence of his mother and her family, particularly as he gets older. Father and son will have the chance to immerse themselves in special activities they can do together, like motor bike riding.
On balance, I find the mother’s proposal may better ensure Jack’s meaningful relationship with both his parents. I give this finding considerable weight in reaching my decision.

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

I agree with Ms Taperell when she reports:
“Their (the parties) interaction is characterised by constant allegation and counter-allegation”
and that this behaviour is destructive to Jack. I share her view that Jack would benefit from fewer changeovers involving both his parents to reduce his exposure to their conflict. Only 3 months ago, at changeover, in front of Jack, the parties were involved in a heated and abusive exchange which I will refer to shortly.
The mother makes serious allegations against the father from the year 2000: that he pushed her downstairs when she was 8 months pregnant; that he hit her causing her a black eye. She says these incidents occurred when the father was under the influence of alcohol. However, she mentioned neither incident to the police in December 2001 when she made further serious allegations about the father and his mother. She complained he was abusing alcohol while caring for Jack, had threatened to shoot her and her family if she did not hand Jack over and threatened that he and his family would obtain an order for custody[5]. She also alleged the father had been charged with assault which she later conceded was wrong.
[5] Exhibit 4
The father admits he used to drink to excess and has had two convictions for drink driving and I note the consent orders of November 2001 provide for the father not to consume alcohol while Jack is with him. On balance, I am satisfied the parties have been involved in aggressive altercations when the father has been under the influence of alcohol. I am not however, persuaded the incidents occurred necessarily as deposed to by the mother. The mother did not impress me as entirely truthful. I found she exaggerates, perhaps for dramatic effect and at times is misleading. For example, I do not accept the following evidence from the mother set out in her affidavit:
[The father’s] solicitors drew up consent orders and I felt I had no choice but to agree to them. The Judge told me that if I did not agree to the consent orders, I could be jailed that day for contravention of court orders.
An incident occurred in July this year. The parties, the father’s de facto partner, the father’s neighbour all gave evidence about the incident which occurred in Jack’s presence at changeover. The parties screamed abuse at each other using obscene language. I accept the evidence of the father’s partner, Ms Thomas and the evidence of the father’s neighbour as to what happened. I do not accept the truth of either party’s version of the incident, particularly the mother’s. While I recognise that this incident occurred while this litigation was pending, I am satisfied both parties behaved appallingly and inexcusably with no regard for the impact of their conduct on Jack. As Ms Taperell says:
“it’s very bad for the child to hear any arguments between his parents and to hear them abusing one another like that.”

The mother denies any incidents of physical violence between herself and her friend Mr Chester though agrees the police applied for an apprehended violence order against Mr Chester on her behalf because of verbal abuse and harassment. She says there is no romantic relationship between them, despite the reference in the police reports to ‘domestic relationship’[6]. I am not satisfied the mother has disclosed to the court the true nature of her relationship with Mr Chester nor the seriousness of his conduct towards her. I have concerns about the mother’s capacity to protect Jack from such inappropriate behaviour.
[6] Exhibit 6
Weighing the evidence in relation to this factor, I find that both parties have at times exposed Jack to abusive and destructive conduct. I have concerns as to whether either party appreciates the emotional damage this exposure causes Jack. I agree with Ms Taperell that both parties are immature. Until both parties commit to improving their manner of communication, I have decided the number of changeovers between them should be kept to a minimum. I have ordered both parties to attend a post-separation parenting course to learn the importance of communicating with each other cooperatively and to appreciate the problems Jack will face if they persist in their current behaviour.
I give some weight to my finding that Jack will benefit from fewer changeovers involving his parents which I find more likely under the mother’s proposal.
Under section 60CC(3) I now consider a number of additional matters.

Jack’s expressed views and the weight those views should be given

The Full Court in H & W (1995) FLC 92-598 at 81,947-8 and in R & R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
Ms Taperell reports Jack telling her without prompting that he wants to live with his mother in Queensland and wants to take his dirt bike with him. He likes visiting his father but does not like sleeping in the same bed with him because “he’s always hot”.
The maternal grandmother deposes to Jack telling her he wants to move to Queensland: “I want to live with you Nanny on the beach” “Will you teach me to surfboard when I live with you?”, “will it be a long time Nanny before I come live with you?”
Given Jack’s age, I give his views minimal weight.

The nature of the relationships between Jack and each parent and other people important in his life

The father does not challenge Ms Taperell’s view that Jack’s primary attachment is to his mother. He also has well-established relationships with his father and with all his grandparents, particularly his maternal grandmother. The mother deposes to Jack speaking to her mother and step-father almost every day on the phone since they have moved to the Sunshine Coast. Jack was a page-boy at the maternal grandmother’s wedding in April. Ms Taperell reports:
He appeared to have a particularly affectionate relationship with his maternal grandmother, who was very responsive to his emotional mood and who seemed able to calm and reassure him.
Jack enjoys a good relationship with Mr Smith, his maternal grandmother’s husband who he refers to as “Poppy Smith”. Mr Smith says he regards Jack as his grandson, Jack having lived with him for lengthy periods and having spent time with him almost daily before his move to Queensland. Mr Smith often watched Jack play soccer and attended his soccer presentation in 2005.
The mother has a large extended family in Queensland and deposes to Jack enjoying his holiday trips to the Sunshine Coast this year, spending time with his cousins, aunts and uncles, grandparents and great-grandparents.
Jack has close relationships with his father and father’s family. Ms Taperell says in her report:
Jack clearly has an established relationship with his father and paternal grandmother. He greeted them warmly and interacted with them in a natural way.
Jack’s paternal grandmother rarely misses watching Jack play soccer. She deposes to Jack enjoying a close and warm relationship with her and with her husband. They garden and cook together, play tennis, go fishing and spend time with their extended family which includes young children of Jack’s age.
If Jack lives in Sydney, he will have less time with his maternal grandmother with whom he has a particularly close relationship. If in Queensland, he will have less frequent time with his father and paternal family, but in total no less time than he enjoys presently. I am not satisfied these relationships will be undermined on either party’s proposal.

The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between Jack and the other parent

This factor is a significant issue in this case whether or not the mother is permitted to relocate. While the parties’ communication remains so poor and the conflict between them high, it is difficult to see how either party can promote Jack’s relationship with the other party to the extent otherwise possible. At a superficial level, there is no issue that the father recognises the importance of the mother to Jack and facilitates his return to the mother when Jack is homesick while staying with him. On the other hand, the mother has for the most part ensured Jack spends regular time with the father and from time to time, has agreed to Jack spending additional time with the father and/or paternal grandmother from the time provided in the orders. However, I agree with Ms Taperell that facilitating contact is very different from promoting a relationship with the other parent. Ms Taperell is pessimistic about Jack’s relationship with the father being maintained, if the mother does not promote the relationship. She says there is a particular risk if Jack is living a long distance away.
Both parties report that Jack says very little about the other parent when away from that parent. I accept from Ms Taperell that Jack is conscious of the conflict between his parents and might stop talking about the other parent “because he doesn’t want the parent he’s with to get upset or angry or to cause an argument” having experienced such reaction in the past. This evidence suggests neither party is affirming the importance of the other party to Jack. Both need to substantially change their attitude.
Ms Taperell formed the view the mother genuinely felt that the father was someone important in Jack’s life and would continue to facilitate contact between them. She says what is important is that both parties and both parties’ families promote whatever arrangements are in place. Mr Brown cross-examined Ms Taperell on this issue. Ms Taperell says:
It would be hard to argue in favour of relocation if one believed that the parent who was moving away was going to prevent or obstruct contact with the other parent. But I still take the view that if the parent who’s going to obstruct contact would do it whether they lived close or at a distance… I’m not sure that the geographic distance would alter an attitude to whether a child should see the other parent or not.
I agree with Ms Taperell that the mother has shown she does accept the importance of the father in Jack’s life and has facilitated Jack’s relationship with him, at least in the last 2-3 years. As a consequence, Jack has a good established relationship with his father and the paternal grandmother. The question is whether the mother will continue to do so if she relocates to the Sunshine Coast. There seems to be a level of cooperative parenting in place though this certainly needs to improve. I am satisfied the mother will ensure Jack spends time with his father whether she moves to Queensland or stays in Sydney, but the mother needs to do more than simply make Jack available to see his father. She needs to promote his presence in Jack’s life by talking positively about the father, by encouraging Jack to share important events and issues with the father. On the other hand, the father needs to take a more active interest in Jack’s life when Jack is with his mother and start taking much more initiative as a parent. It is important he allows Jack to share with him the life he has with his mother, rather than confining his interest to when Jack is with him or his family. A parenting course may assist him.
Given the parties’ dependence on their mothers, it is disappointing to see that the grandmothers have not played a constructive and positive role in encouraging Jack in his relationship with both his parents. In my view, they could be of considerable assistance.
The mother’s proposal is for Jack to spend more time with the father than he does now and to communicate with the father regularly. She has made plans to remain in Sydney when Jack first travels to Sydney to ensure he manages the extended time away from her. I find the mother has given careful consideration to the practical aspects of Jack’s travel to Sydney.
The father, by his proposal, accepts Jack should continue to live with the mother. However, he is highly critical of the mother and I am not persuaded the father promotes a positive view of the mother to Jack. I have concerns generally about the father’s lack of commitment to his parenting responsibilities outside the narrow ambit of the time he spends with Jack.
Weighing the evidence in relation to this factor, I am satisfied the mother will ensure Jack spends time with the father and communicates with the father whether living in Queensland or Sydney. I am not satisfied either party yet understands the importance of encouraging and affirming Jack’s relationship with the other. On either party’s proposal this is a concern.

The likely effect of any changes in Jack’s circumstances, including the likely effect on him of any separation from a parent or any other person with whom he has been living

Jack is presently living with his mother in a home provided by Community Housing until December 2006. His home is located near his school. Jack speaks daily to his maternal grandparents on the phone. He sees his maternal grandmother when she visits Sydney and visits his mother’s extended family on the Sunshine Coast from time to time. The mother says Jack is well settled at school and is making good progress. When with his father, Jack is with the father and his partner and with his paternal grandparents. This will change in January when Jack will spend time with the father, his partner and their new baby.
On the father’s proposal, the present arrangements will not change, though it is likely the mother will have to move sometime after her lease expires. If in Queensland Jack will face a number of changes. He will attend a different school and will need to make new friends. He will not see his father and paternal grandparents each second weekend but rather every 5 weeks or so. There will be few opportunities for spontaneous meetings. His father and his mother will rarely be at soccer to watch him play. However, he will be in the same residence as his maternal grandparents and will be supported by his extended family. He will have easy access to school, to the beach, to the soccer club and tennis courts. The mother says Jack knows cousins in the area and makes friends easily. The mother says she will be better off financially, with rent-free accommodation and employment, which will improve Jack’s standard of living.
The father does not address the difficulties faced by the mother in relation to employment, accommodation or lack of social supports in Sydney and the impact of her difficulties on Jack. The mother only has the certain security of her present accommodation until December. On the basis of her past history, it is likely she will find herself moving house again as she has done 7 times in the last 4 years.
In Ms Taperell’s view, the benefit to Jack of enjoying stable secure accommodation and family support outweighs other possible disadvantages of a move from Sydney. I agree with her.

The practical difficulty and expense of Jack having contact with both parents

The mother’s proposed residence in Queensland is about 5 minutes by car from Maroochydore airport. It is a 90 minute flight to Sydney. The mother deposes to the cost of airfares from Maroochydore to Sydney as a minimum $70 and maximum $103 each way, depending on how far in advance the flight is booked. Virgin airlines internet information provides for fares in the range $89 if booked in advance to $249 for a fully flexible fare[7]. The mother’s counsel cross-examined the father on the costs of travel if Jack lives in Queensland. The father agrees that if Jack travels 7-8 times a year, his child support payments will cover the costs. Given the mother will be living rent-free, I agree with the mother’s counsel that the arrangement is affordable, even without having regard to income the mother proposes she will earn from the position she has been offered.
[7] Exhibit 10
The father says if Jack is living in Queensland, he would hope to visit twice a year. He has his own family, his friends and his work in Sydney and a new baby due in January which he says will make it difficult for him to travel more often.
On the father’s proposal, there is no evidence of any practical difficulties in relation to Jack spending time with the father. While I accept there are greater practical difficulties if Jack is living in Queensland, I am not satisfied they are significant. I therefore give this factor minimal weight.

The capacity of each parent or other person to provide for Jack’s needs

The mother has been unable to provide Jack with secure accommodation. The mother and Jack have lived in approximately 7 or 8 different homes since he was born. The mother deposes to difficulties she has had finding adequate and affordable accommodation in a safe area but concedes she has moved voluntarily on 4 occasions. As already noted, the mother and maternal grandmother tell the court the mother and Jack will have a 2 bedroom flat rent free, owned by her grandparents, if the mother is permitted to live on the Sunshine Coast.
Ms Taperell says Jack needs to identify a residence as a stable home base. The mother’s frequent moves have, in Ms Taperell’s view, led to an anxiety in Jack which she believes affects his sense of security when he is away from his mother:
I do think he’s quite an anxious child and some of that anxiety in my view possibly stems from the fact that the mother has not been able to secure long term stable accommodation.
Ms Taperell believes stability is the most important consideration when deciding parenting arrangements for Jack. The father doubts the mother’s commitment to living in her grandparents’ home with her parents, even though the flat is separated from the main residence. Mr Brown submits that the mother could have lived with her mother in Sydney, but instead chose to move to her own place. He submits the Court should not accept the mother will stay long-term with her parents. While I accept there is no guarantee the mother will remain long term in her grandparents’ home, or as I have said, that the home will be available long-term, I am not satisfied on the evidence available to me that the mother’s proposal to take advantage of the rent-free accommodation being offered to her, is not genuine.
There is no evidence before me to suggest both parents are not capable of caring for Jack’s day to day physical or intellectual needs, despite the mother’s complaints about various aspects of the father’s care of him. Both parties recognise Jack’s love of sport and want him to enjoy opportunities to participate in sport. I am also satisfied each party recognises the importance of extended family in Jack’s life and encourages his social interaction with children of his own age.
An issue arises as to each party’s capacity to provide for Jack’s emotional needs in that both parents subject Jack to the conflict between them and are insensitive to the effect this has on him. I find Jack is unable to express his views or feelings openly with either parent for fear of the reaction and that both parents have denigrated the other parent in front of him. I have examined this issue earlier in these Reasons.
On the father’s proposal, the mother will be denied the opportunity to take up employment with the support of her family, and will be denied the opportunity for stable accommodation, rent-free. She will continue to be relatively socially isolated with the difficulties inherent in managing on limited income as a sole parent in Sydney. It is likely to place even more tension in the relationship with the father. Although I am impressed by the mother’s efforts to find supported accommodation in Sydney and by her efforts to parent Jack with considerable skill, I have concerns about the impact on her emotional and physical health if she is unable to relocate. I believe it likely the mother’s unhappiness would impact adversely on Jack.
I have some concerns about how the father will manage if the mother relocates with Jack. He may at first blame the mother for his predicament. However, the father is well supported by a close family and by his partner. He is soon to be a father again. The father acknowledged in cross-examination his need to assist Jack with the move if the mother relocates. While opposing the relocation, to his credit, he was prepared to acknowledge some of the benefits for Jack. I have confidence the father will adjust to the new situation and deal constructively with it.
I am satisfied the mother’s proposal best meets Jack’s needs in relation to this factor and I give weight to this factor.

Jack’s maturity, sex, lifestyle and background, including his right to enjoy his aboriginal culture

Both parents and grandparents identified as being Aboriginal. Ms Taperell observed Jack referring to his grandmothers as “aunty” which she understood as a generic term for female friends and relatives in Aboriginal families. The mother however, doubts the truth of the father’s family’s assertion that they are Aboriginal.
The maternal grandmother told Ms Taperell her husband is Aboriginal and although she is not involved in any formal Aboriginal groups, she has recently found out about her Aboriginal background and has met more Aboriginal people with whom she has connections. Jack’s maternal step-grandfather is teaching Jack to play the didgeridoo and is actively involved in the Aboriginal community. The mother says Jack was recently proud to demonstrate his skills on the didgeridoo to his classmates. Jack has a large extended family on his mother’s side in Queensland as does his step-grandfather.
The paternal grandmother says all members of her family, including the father are members of the local Aboriginal Land Council. There is no other evidence of the father’s family’s involvement in the Aboriginal culture in Sydney.
I find on balance Jack will have a greater opportunity to enjoy his Aboriginal heritage if he is living with his mother and her extended family in Queensland than if he remains in Sydney. I give some weight to this factor.

Jack’s maturity, sex, lifestyle and background

There are no additional matters I have regard to in relation to this factor.

The attitude each parent has demonstrated to the responsibilities of being a parent

Each party acknowledges the importance of the other parent in Jack’s life and both say they will support Jack’s relationship with the other. Yet, as previously noted, I find both have undermined each other in front of Jack without regard to the impact of such behaviour on him.
In cross-examination by the father’s solicitor, Ms Taperell says that whatever the parenting arrangements ordered by the court, what is important is the mother facilitating and promoting Jack’s relationship with the father. In her view, it is more damaging for Jack to have his relationship with his father undermined than for Jack to have less time with the father. I have already dealt with this issue.

I am troubled by some aspects of the father’s parenting. I find the father has a tendency to put his own needs before Jack’s. He left Jack with the paternal grandmother during his limited holiday time with Jack after Christmas last year so he could have a holiday with his partner then living in Coffs Harbour. He blamed the mother for not enrolling Jack in swimming lessons but took no initiative himself. He attended only a few of Jack’s soccer games during the season because he had “other commitments”. He did not attend his presentation day last year because “[the mother] told me he didn’t have a presentation”. He made no inquiries of his own. He is content to leave the responsibility of Jack’s school and extra curricular activities to the mother. I find the father avoids entire areas of parental responsibility by deferring to the mother or blaming the mother for his lack of involvement. I have concerns that the father does not seek additional time with Jack not just because of possible work commitments and apprehension about managing Jack if missing his mother, but because having Jack with him or attending events in which Jack is involved, does not always suit the father. I doubt the father has seriously considered the benefits to Jack of greater paternal interest in these activities.
There is no evidence before me as to the father’s willingness to consult with the mother about her proposed move to the Sunshine Coast. I find no evidence of the father discussing with the mother the advantages and disadvantages for Jack. I find the father formed a fixed view early and prior to hearing was not prepared to consider any possible merit in the proposal. If parties want to achieve cooperative parenting, each must be prepared to engage constructively on issues in dispute between them.
I have no doubt as to the mother’s commitment to Jack. She has been a single parent since Jack was a baby. She has ensured his continuing relationship with his father. Jack impressed Ms Taperell as a healthy, bright and lively child who was generally cooperative. The mother should be given appropriate credit for this. However, I am critical of the mother when she has failed to consult the father about major decisions, including enrolling Jack in school, a fundamental responsibility of being a parent.
I believe there is a greater chance of the parties improving their ability to consult and communicate, and a greater chance of the father increasing his commitment to Jack’s overall welfare, if the mother relocates and Jack has block time with the father.

Any family violence or family violence order involving Jack or a member of Jack’s family

There are no current apprehended violence orders in force. I have already considered issues of family violence and their effect on Jack.

What orders would minimise the risk of there being further court proceedings about Jack

I am not persuaded future litigation is likely on either party’s proposal. I find both parties are committed to ensuring Jack’s continuing relationship with the other. This is not a factor to which I give weight.

The extent to which each parent has fulfilled or failed to fulfil, his or her responsibilities as a parent, including spending time with Jack, participating in decision –making about his welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain Jack

I have considered this factor elsewhere in these Reasons with the exception of Jack’s maintenance.
It is not disputed and it is to the father’s credit that he pays $220.00 a month in child support despite an assessment of only $21.60 a month. Although I accept the mother’s evidence that he stopped paying for a period at the end of last year, I am satisfied the father has met his child support obligations reliably and will continue to do so.
I am satisfied on both proposals, each party will fulfil his/her obligation to maintain Jack and this is not a matter I need take into account.

Parental responsibility

Section 61C(1) provides that each parent has parental responsibility for the child but by section 61C(3) the joint parental responsibility is subject to any order the court may make. Parental responsibility relates to decision making. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The father seeks an order for equal shared parental responsibility. The mother seeks no order in relation to parental responsibility. Ms Taperell says in evidence:
One of the preconditions for the sharing of those decisions is the parents communicate well with each other and it’s clear that these parents aren’t very good at communicating with each other. So while I think they should certainly keep one (another) informed of significant events for the child, it may be unrealistic to expect that they can have the level of communication that is needed to truly share all decisions.
It is common ground that the mother and the father have not cooperated to make decisions about Jack’s welfare since their separation in late 2000. They have not been able to communicate about Jack or issues concerning him. As already noted, I have formed the view that the father has shown little interest in participating in these decisions and has taken almost no initiative to obtain information which would have been readily available to him had he made inquiries. Given this history, I believe an order for equal shared parental responsibility would be impractical in the circumstances of this case and not in Jack’s best interests. I will require the mother however, to consult the father about any change to Jack’s school and to keep the father informed of Jack’s activities, health and general progress.
I accept Ms Taperell’s recommendation that the mother have sole responsibility for decision-making about Jack.

Conclusion

I invited Ms Taperell to discuss the research in the social science literature on the impact of relocation on the long term welfare of children. She said there have been no longitudinal studies completed to date, and no definitive study of any kind in Australia. She says the results of the research do not give a clear answer as to whether relocation benefits a child or otherwise. While she says a retrospective study in the United States of 2003 gives a negative picture of relocation, other studies show it is best for a child to be with a parent who is happy, which can involve that parent relocating. A happier parent may be a more cooperative parent. I have not had regard to the research studies Ms Taperell referred to in reaching my decision.
The legislation makes clear that Jack must be the focus of the inquiry. The court must consider the impact of the proposed relocation on Jack’s short and long term welfare. The court must make orders it considers to be in the best interests of the child. The majority of the High Court in U v U[8] held that:
“whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.”
[8] (2002) 211 CLR 238
There is no issue between the parties that Jack will remain living the majority of the time with the mother, to whom he has the closest attachment. The question is whether it is in Jack’s best interests for the mother to relocate with him to Queensland with Jack having block periods of time with the father or whether the mother should be restrained from leaving Sydney so the present parenting arrangements can continue. Ms Taperell supports the mother’s proposal because she believes it will provide the most stable option for Jack. She says Jack needs one home, one school and the support of family and if those things are in place, it could benefit Jack’s relationship with the father. She says in oral evidence:
I took the view that the most important thing for Jack was for him to have a stable home and a secure home and that it would be best for him if there was a set pattern of spending time with his father so that he got into a clear routine and he could settle in one home.. In these relocation matters it’s very difficult to have a perfect answer, so in my experience it is a matter of balancing advantages and disadvantages for the child, but I placed greater weight on the issue of stability for the child.
On a weighing of all the factors considered, I accept Ms Taperell’s view that the advantages for Jack moving to the Sunshine Coast with his mother outweigh the advantages to him of remaining with his mother in Sydney. I will permit the mother to relocate.
I have considered the orders which will best promote the relationship between Jack and his father. Ms Taperell recommends that Jack spend at least half his school holidays with the father but that for the first 2 or 3 visits the mother accompany Jack to Sydney so she is available if necessary. She recommends shorter periods of holiday time initially. Ms Taperell recommends specific times for telephone calls and agrees with the mother’s counsel that any form of electronic communication can be helpful, if available. She recommends Jack spend one weekend a term with the father, so there is not too much time between visits.
Ms Taperell says it will help Jack if the father can spend time with him in the Sunshine Coast region. She recommends the mother pay for the first two periods and thereafter the parties share the travel costs. I have substantially followed Ms Taperell’s recommendations as to the time Jack will spend with the father, although initially Jack will be away from the mother for even shorter periods.
I have considered the father’s concern that the mother will not stay in her grandparents’ home or the vicinity of that home when she is permitted to relocate. I accept the mother may not in time, enjoy living so close to her mother, stepfather and grandfather, despite its present convenience for her. Ms Taperell emphasises the importance of Jack having a stable and secure base including schooling. To ensure the mother does not move from that area, I have decided to restrain her from changing Jack’s enrolment, once he has started at MPS. She will be able to do so only with the written consent of the father.
I am satisfied that the Orders set out at the commencement of these Reasons are in Jack’s best interests.

I certify that the preceding one hundred and four (105) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Collette McFawn

Date: 10 November 2006