CM and YL - [2003] FMCAfam 349

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CM & YL

[2003] FMCAfam 349

FAMILY LAW – Children – planned relocation of mother – mother wishes to move to Queensland – regular contact proposed but unlikely to be available without real financial hardship to parties and child – father and child have strong relationship – alternate proposal that mother and child live in Canberra will enable regular contact – father’s application for injunction restraining relocation out of Western Sydney refused – mother and child permitted to move to Canberra.

Family Law Act 1975, ss.60, 62, 65, 68

B and B: Family Law Reform Act
A v A: Relocation Approach (2000) FLC 93-035
U v U (2002) FLC 93-112

Applicant:

Respondent:

File No:

PAM108 of 2003

Delivered on:

28 August 2003

Delivered at:

Parramatta

Hearing dates:

6 & 7 August 2003

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr R. Storie

Solicitors for the Applicant:

Roderick Storie & Partners

Counsel for the Respondent:

Mr S. Stewart

Solicitors for the Respondent:

Legal Aid Commission of New South Wales

ORDERS

That the child of the marriage namely AM born
26 March 1998 (hereinafter referred to as “AM”) live with the mother, YL.
That the parties have joint responsibility for AM’s long term, care, welfare and development.
That each of the parties respectively have responsibility for AM’s day to day care, welfare and development during periods whilst he is in their sole care.
That the mother keep the father informed at all times of any educational institution attended by AM from time to time including the full name, address and telephone number of the said institution and further, the mother do authorise the Principal of that institution to release to the father at his request and at his cost copies of any school newsletters, information sheet, school reports, photographs and the like from time to time.
That the mother do keep the father informed at all times of AM’s residential address and landline telephone number and provide to the father not less than twenty-eight (28) days in writing of her intention to change AM’s principal place of residence.
That the parties do keep each other informed at all times of their contact landline telephone number and if applicable, landline telephone numbers.
That the parties do forthwith notify the other in event that AM suffers any serious illness or injury whilst in their respective care and further provides the name, address and telephone number of any hospital or other medical practitioner dealing with AM’s illness or injury that which may be suffered at any time whilst in their respective care.
That each of the parties not denigrate the other party or members of that parties family in the presence and hearing of AM or at all and that each party use their best endeavours to ensure that third parties do not denigrate the other party or members of that parties family in the presence and hearing of AM or at all.
Subject to order three (3) the mother is at liberty to relocate with AM to the Australian Capital Territory.
That upon the mother and the child relocating to the Australian Capital Territory, that the father have contact with the child.
(a)For one half of the short school holiday periods, as proclaimed in the Australian Capital Territory and in the absence of agreement as to which half, the first half in years ending in an odd number and the second half in years ending in an even number and alternating year about thereafter.
(b)For 21 days during the Australian Capital Territory Christmas school holiday period as follows:
(i)From the morning of 24 December to the evening of
14 January in the year 2003-2004
(ii)From the morning of 27 December to the evening of
17 January in the year 2004-2005, and alternating year about thereafter.
(c)Each alternate weekend and from 6pm Friday until 6pm Sunday and extending to 6pm Monday in the event of a proclaimed public holiday in the Australian Capital Territory.
(d)By telephone on an agreed and flexible basis and in the absence of agreement, each Tuesday and Friday between 7pm and 7.30pm, Australian Capital Territory time, with the mother to facilitate AM telephoning the father on his landline telephone number.
(e)At such further times in the Australian Capital Territory as the parties may agree upon from time to time for up to seven consecutive days provided however always that should AM be attending at school, then the father shall stay close enough to his educational institution to enable AM’s attendance at school on those days.
(f)In the event that the mother is in the Sydney Metropolitan Area with AM, she shall use her best endeavours to ensure that AM spends time with the father.
(g)That for the purposes of contact, the mother shall deliver AM to the father at the commencement of contact periods and the father shall return to the same place at the end of contact.
(h)Unless otherwise provided in these orders, the parties shall meet at a place equidistant between the Australian Capital Territory and the Sydney Metropolitan Area for the purposes of contact changeover.
(i)That in the event that the mother proposes to be in the Sydney Metropolitan Area over the weekends when AM is on contact with his father, she will then be responsible for picking AM up from the father’s home at the conclusion of contact periods unless otherwise agreed between the parties.
(j)That the weekend contact cycle provided for in Clause 14 (c) herein be suspended during all school holiday periods and recommence the weekend immediately following the resumption of school holidays;
(k)That should Father’s Day fall on a non contact weekend, then the father shall have contact for the whole of that weekend in addition to the usual cycle of weekend contact.
(l)That in the event that Mother’s Day falls on a contact weekend, then contact shall be suspended over that weekend and the weekend cycle shall not otherwise be altered.
SCHOOL HOLIDAY CONTACT:
(a)SHALL commence at 11.00am.
(b)SHALL conclude at 2.00pm.
(c)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
(d)Pupil free days are deemed to be school holidays.
(e)Christmas 2003/2004 is defined as a year ending in an odd number.
(f)Years ending in a zero are defined as years ending in an even number.
(g)If a contact period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday.
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 (excluding the family report) are to be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM108 of 2003

Applicant

And

Y L

Respondent

REASONS FOR JUDGMENT

This is an application by CM (“the father”) to restrain YL (“the mother”) from changing AM’s (“the child”) place of residence to a place beyond greater metropolitan Sydney. The father’s application pre-empted the mother’s plans to move from Sydney to Queensland. After the proceedings were started the mother expanded her proposal so that if she was unsuccessful in relation to Queensland, the court would consider her alternate suggestion of Canberra. Her preference is Queensland.

The Applications

The father started the proceedings when he filed his application for final orders at W Local Court on 26 September 2002. The proceedings were transferred to the Family Court of Australia and then to the Federal Magistrates Court of Australia. When the matter was called on for hearing on 2 July 2003 the father, who was then appearing on his own behalf, sought an adjournment so that he could present a residence application. The matter was adjourned for four weeks and directions were made so that the hearing could proceed expeditiously and include his claim for residence. On 10 June 2003 the father filed an amended application for residence. At the start of the hearing his solicitor advised that the father abandoned his claim for residence and sought the following order:
That the respondent is restrained from changing the child’s residence from greater metropolitan Sydney: bounded by Penrith, Hornsby, Bowral and W.
During the hearing the father indicated that should the mother succeed and move to Canberra he sought contact each second weekend from 7.00 pm Friday until 7.00 pm Sunday and one half of all school holidays[1]. He found it difficult to construct contact arrangements should the mother move to Queensland. In essence he wants to see AM as much as possible.
[1] Exhibit A
The mother filed her response on 20 February 2003. Having received the father’s amended application she filed an amended response to it on 16 July 2003. The orders sought by her are as follows:
1.That the child of the marriage namely A M born 26 March 1998 (hereinafter referred to as “AM”) live with the wife, Y L.
2.That the wife and husband have joint responsibility for AM’s long term, care, welfare and development.
3.That each of the parties respectively have responsibility for AM’s day to day care, welfare and development during periods whilst he is in their sole care.
4.That the wife forthwith be at liberty to relocate with AM to the State of Queensland.
5.That the husband have contact with AM as follows:
(a)   Until the wife relocates to the State of Queensland, each weekend from after school Friday to before school Monday.
(b)   Upon the wife and child relocating to the State of Queensland, for the entirety of the Queensland April and September/ October school holiday periods in each year from the first day thereof to the last day thereof.
(c)    For one half of the Queensland July school holiday period in each year from the first day thereof to the evening of the eighth day thereof.
(d)   For twenty-one (21) days during the Queensland Christmas school holiday periods as follows:
(i)From the morning of 23 December to the evening of 13 January in the year 2003/2004.
(ii) From the morning of 27 December to the evening 17 January in 2004/2005 and alternating year about thereafter.
(e)   By telephone on an agreed an flexible basis and in the absence of agreement each Tuesday and Friday between 7.00 pm and 7.30 pm Queensland time with the wife to facilitate AM telephoning the husband on his landline telephone number from time to time.
(f)     At such additional times in Queensland that the parties may agree upon from time to time for up to seven (7) consecutive days provided however, always that should AM be attending at school, then the husband shall stay approximate enough to his education institution to enable him to facilitate AM’s attendance at school on those days.
6. That for the purposes of all contact to be given and taken in Queensland, the wife shall be solely responsible for the costs of AM’s accompanied air travel for as long as it is necessary for him to be accompanied between New South Wales and Queensland with the husband to be responsible for collecting AM from the Mascot Airport at the commencement of such period of contact and returning him thereto at the conclusion of such period of contact.
7. That for the purposes of any contact in Queensland, the husband is to collect AM from the wife’s residence at the commencement thereof and return him thereto at the conclusion of such contact period.
8.That the wife keep the husband informed at all times of any educational institution attended by AM from time to time including the full name, address and telephone number of the said institution and further, the wife do authorise the Principal of that institution to release to the husband at his request and at his cost copies of any school newsletters, information sheet, school reports, photographs and the like from time to time.
9. That the wife do keep the husband informed at all times of AM’s residential address and landline telephone number and further, that she provide to the husband not less than twenty-eight (28) days in writing of any intention to change AM’s principal place of residence.
10. That the wife and husband do keep each other informed at all times of their contact landline telephone number and if applicable, landline telephone numbers.
11. That the husband and wife do forthwith notify the other in event that AM suffers any serious illness or injury whilst in their respective care and further provides the name, address and telephone number of any hospital or other medical practitioner dealing with AM’s illness or injury that which may be suffered at any time whilst in their respective care.
12. That each of the parties not denigrate the other party or members of that parties family in the presence and hearing of AM or at all and that each party use their best endeavours to ensure that third parties do not denigrate the other party or members of that parties family in the presence and hearing of AM or at all.
THAT IN THE ALTERNATIVE TO ORDERS 4, 5b-5f, 6 & 7, AS FOLLOWS:
13. That the wife forthwith be at liberty to relocate with AM to the Australian Capital Territory.
14. That upon the wife and the child relocating to the Australian Capital Territory, that the husband have contact with the child.
(A) for one half of the short school holiday periods, as proclaimed in the Australian Capital Territory and in the absence of agreement as to which half, the first half in years ending in an odd number and the second half in years ending in an even number and alternating year about thereafter.
B) For 21 days during the Australian Capital Territory Christmas school holiday period as follows:
(i)From the morning of 24 December to the evening of 14 January in the year 2003-2004
(ii) From the morning of 27 December to the evening of 17 January in the year 2004-2005, and alternating year about thereafter.
C) Each alternate weekend and from 6pm Friday until 6pm Sunday and extending to 6pm Monday in the event of a proclaimed public holiday in the Australian Capital Territory.
D) By telephone on an agreed and flexible basis and in the absence of agreement, each Tuesday and Friday between 7pm and 7.30pm, Australian Capital Territory time, with the wife to facilitate AM telephoning the husband on his landline telephone number.
E) At such further times in the Australian Capital Territory as the parties may agree upon from time to time for up to seven consecutive days provided however always that should AM be attending at school, then the husband shall stay approximate enough to his educational institution to enable him to facilitate AM attendance at school on those days.
F) In the event that the mother is in the Sydney Metropolitan Area with AM, she shall use her best endeavours to ensure that AM spends some contact time with the husband on an agreed basis.
G) That for the purposes of contact, the wife shall deliver AM to the husband at the commencement of contact periods and the parties shall meet at a place equidistant between the Australian Capital Territory and the Sydney Metropolitan Area for the purposes of AM being returned from contact periods.
H) That in the event that the wife proposes to be in the Sydney Metropolitan Area over the weekends when AM is on contact with his father, she will then be responsible for picking AM up from the husband’s home at the conclusion of contact periods unless otherwise agreed between the parties.
I) That the weekend contact cycle provided for in Clause 14 © herein be suspended during all school holiday periods and recommence the weekend immediately following the resumption of school holidays;
J) That should Father’s Day fall on a non contact weekend, then the father shall have contact for the whole of that weekend in addition to the usual cycle of weekend contact.
K) That in the event that Mother’s Day falls on a contact weekend, then contact shall be suspended over that weekend and the weekend cycle shall not otherwise be altered.
FURTHER, AND IN THE ALTERNATIVE, THAT SHOULD ORDER 4 OR ALTERNATIVELY ORDER 13 BE REFUSED, CONTACT TO THE HUSBAND AS FOLLOWS:
15. Each alternate weekend from 6pm Friday until before school Monday and extending to 6pm Monday in the event of a proclaimed public holiday in NSW.
16. For one half of all of the short NSW school holiday periods and in the absence of agreement as to which half, the first half in years ending in an odd number and the second half in years ending in an even number and alternating year about thereafter.
17. For one half of the proclaimed NSW Christmas School holiday period and in the absence of agreements as to which half, the first half in years ending in an odd number and the second half in years ending in an even number and alternating year thereafter (the year number being that which falls in December).
18. On the occasion of Father’s Day, if not otherwise a contact weekend from 6pm the evening before Father’s Day to 6pm on Father’s Day.
19. Should Mother’s Day fall on a usual contact weekend, then contact shall be suspended from 6pm the evening before Mother’s Day.
20. If not otherwise a contact occasion, for an agreed period on both the child’s birthday and the father’s birthday.
21. From 9am 24 December to 12 noon 25 December in the year 2003 and from 12 noon 25 December to 6pm 26 December in the year 2004 and alternating year about thereafter.
22. That alternate weekend contact be suspended during school holiday periods and to resume the first weekend after the resumption of school in the event that the father had school holiday contact in the first half of the school holiday and resuming the second weekend after school resumes if the father had contact in the second half of the school holiday.
23. By telephone on an agreed and flexible basis and in the absence of agreement, each Tuesday and Thursday between 7pm and 7.30pm, the wife to facilitate AM telephoning the husband on the husband landline telephone number.
24. Such further contact as may be agreed upon between the parties from time to time.
25. That further purposes of contact, the wife shall deliver AM to the husband at the commencement of contact periods and the husband shall return AM to school at the conclusion of weekend contact or otherwise return AM to the wife at the conclusion of school holiday and other special contact.

The evidence

The father relied on his affidavit filed 10 June 2003 and his oral testimony.
The mother relied on the following evidence:
·Her affidavit sworn 25 June 2003 and her oral testimony;
·Affidavit of HH filed 6 August 2003. This witness was not cross-examined and I accept her evidence.
·Affidavit of RL filed 6 August 2003. This witness was not cross-examined and I accept his evidence.
·Affidavit of SR. This witness was not cross-examined and I accept her evidence.
Both parties tendered documents, which became exhibits in the proceedings.
Pursuant to s.62G (2) of the Family Law Act 1975 Dr L prepared a report[2]. Dr L was cross-examined. He concluded:
“AM has a good relationship with both parents and enjoys the company of both. He appears to have a good quality attachment to both parents. Despite the acrimony of the parental separation, and a clear implication that Mr M unwittingly or otherwise seeks to draw his son into that acrimony, AM appears unfazed to date by it. I assume that part of that good adjustment is that both parents live reasonably close and to allow AM to further his interest both inside and outside the family with little effect of disturbing. As harsh as it may seem, AM’s welfare does appear maximised by the presence of both his parents and in the short term at least his emotional world is likely to be upset if one or the other parent were to move away. There appears to be a lack of emotional vulnerability, suggesting that he would accommodate to changes in parent contact over time”.[3]
[2] Exhibit B
[3] Paragraph 37 of Family Report

The background facts

The father was born on 3 January 1969 and is thus 34 years old.
The mother was born on 12 March 1973 and is thus 31 years old.
The parties commenced cohabitation in 1991. They married on 22 March 1997. They have one child, AM who was born on 26 March 1998. Neither party has any other children.
The parties separated in early 2001 for about six months. During this period AM remained with the mother and the father lived with a friend at Penrith. This separation lasted about three months. Having resumed their relationship briefly the mother then asked the father for time to her self and suggested that he leave the home. He complied and went to Melbourne where he lived with his parents for six months. The father returned to their home two days before Christmas 2001. The parties separated on a final basis in March 2002. At separation the mother and child left the home.
Since separation AM has lived with the mother and had extensive contact to the father. By agreement they established a routine whereby the father collected AM at 6.00 pm each Friday and delivered him to day care Monday morning. This routine was maintained without alteration until 2 July 2003. That day the parties agreed that the child would remain with his mother one weekend in each four weekends. The first weekend that the mother had with the child was 12 July 2003.
Since the separation the parties have lived in close proximity to one another. After separation the mother moved to W and then to nearby H. The father lives at G.
The mother’s best friend, SR, moved to Queensland in July 2001. Ms SR has two children, one-aged 6 years and a 5-year-old. At Easter 2002 the mother and AM holidayed at SR’s home in Queensland. The holiday lasted two weeks. Upon her return the mother told the father that she wanted to move to Queensland to live, taking AM with her. I accept the father’s evidence that he did not agree that she could take AM to Queensland to live. In September 2002 she went to Queensland again. She told the father, “I’m going back up to Queensland to start looking for a house, a job and to look at schools”.
The day after her departure the father filed his application at W Local Court. During the week that she was in Queensland SR’s mother offered her work in a bakery. The mother found a three-bedroom home at R for $135 per week rent. It was only a few minutes drive from the home to the bakery and a local school.
Upon her return from Queensland the mother resumed shared accommodation. She and AM live with her cousin, MB and a friend, TM. Both work full time. The home is a three-bedroom home, which means that she and AM share a bedroom.

I agree with the mother’s assessment that her living arrangements are tolerable in the short term, but certainly not desirable in the long term. In her affidavit the mother says that she pays $110 per week as her one-third share of rent and expenses[4]. In her oral testimony she said she paid $80 per week. I accept her oral testimony on this issue.
[4] Paragraph 33 of Mother’s affidavit
During the 2002 Christmas school holidays, the father had contact for between two and three weeks starting 26 December 2002. He took AM to Melbourne to visit his paternal grandparents for one week.

The father’s circumstances and proposals

In 1992 the parties rented the home that the father lives in at G. This is a modest two-bedroom cottage standing on 5 acres. One of the bedrooms is set up as AM’s room. The father works full-time as a metal trades assistant. He has worked at X, for two years. His employment is secure and he is paid $460 per week nett. Presently, he works from 2.30 pm to 10.30 pm. His conditions of employment include four weeks annual recreation leave. On a Friday he works from 11 am to 5.30 pm. He does not have flexitime privileges or the opportunity to take regular long weekends. He is confident that during school holidays, once he had exhausted his recreation leave entitlements, he would be able to work a day shift. His employers prefer that recreation leave is taken in a block at Christmas time, although will accommodate it being staggered throughout the year.
The father’s family live in Melbourne. He has lived in Sydney, other than during the second separation, continually since the parties started to live together. He has extended family that lives nearby. AM plays with their children, N and J. The mother’s aunt and uncle live directly opposite. N regularly visits. The aunt and uncle provide babysitting if needed and have a close association with the father and AM.
When the parties separated the wife removed the majority of household goods. The parties had outstanding debts; electricity, rent, telephone and a loan for a new engine for the mother’s car. The father accepted responsibility for half of these debts and has slowly repaid them. The mother’s mother has repaid the other half. He has borrowed household goods and managed to put together sufficient contents for the home. The father has limited financial resources in the sense that he has a modest income and after paying $150 per week rent the balance is spent on day to day living expenses. Most Friday nights he and AM eat at a local fast food restaurant. They often have a Saturday night movie and on Sundays go on outings, for example, to Darling Harbour and Featherdale Wildlife Park.
It has taken the father many years to find stable employment. Basically he has been an itinerant employee and had significant periods where he was unemployed. Because he has obtained employment with an employer who he believes values his work and offers secure long-term employment, he does not want to leave. I accept that he may have difficulty obtaining secure, appropriately paid employment elsewhere. His decision not to move if the mother departs Sydney is reasonable. Without employment the father has limited capacity to provide an appropriate environment for contact, adequate accommodation for himself or pay child support. To a considerable degree the father has organised his life so that he is able to exercise substantial and reliable contact to his son. His relationship with AM is immensely valuable to him. Whilst he recognises the mother’s right to live where and with whom she chooses, his concern is the effect of distance upon his relationship with AM and his opportunity to have a meaningful impact as a father.
Because his income is limited, the father does not believe that regular contact between Sydney and Queensland can be afforded. As a general proposition he accepts that the mother is genuine when she says that she will promote contact. This, he says, must be tempered by financial reality. He does not believe that the parties can meet the cost of regular air travel and says that contact structured only during school holidays is an inadequate response to his relationship with AM. Should the mother and child live in Canberra he says the mother should undertake the bulk of the travel. Alternate weekend contact would start on Friday evening and end on Sunday evening, a shorter period than he and AM currently enjoy. The father acknowledged that the mother should have time with AM on weekends and during half of the school holidays once she returns to work.

The mother’s circumstances and proposals

Until she was about 16 years old the mother lived with her parents in the Australian Capital Territory. After her father passed away the mother moved to G to live with her aunt and uncle. From the time she arrived in Sydney and until two weeks prior to AM’s birth she worked full time. After AM’s birth the mother took twelve months paid maternity leave and cared for him. During her maternity leave the father worked for a tool making company at XX. While she was on maternity leave her employers relocated and moved to Y. When she went back to work the mother arranged for AM to attend daycare from 8 am to 3 pm Monday to Friday. She dropped AM at daycare on the way to work and collected him on her way home. She resigned her employment on 14 March 2000 in order to have time with AM.
In August 2000 the mother and AM travelled to England to see her grandfather. Her mother paid their airfares. The father was unable to raise his travel costs and did not accompany them. Upon their return on 18 September 2000 AM resumed daycare, three days a week. During their first separation the mother obtained work, stacking shelves at a supermarket in XX. She worked three or four nights each week, between 6 pm and 11 pm-midnight. AM was delivered to her aunt and uncle on her way to work and she would collect him from them the following morning. During this separation the father had contact on weekends, not necessarily each weekend. At some stage during late 2001 the mother gave up her employment because she felt that AM needed more time with her. AM still attended daycare three days a week.
At separation the mother moved into shared accommodation at 633 George Street, W. She shared her home with her cousin PB and another friend. That arrangement lasted for about twelve months. Her housemates moved on and because she could not afford to rent the house herself, the mother moved into her current shared accommodation. The mother reduced AM’s attendance at daycare to Monday and Friday each week. This is the current arrangement.
I accept the mother’s evidence that her aim is to live independently and no longer rely on Centrelink benefits. She has not looked for work in her locality since separation. Without significant support she says the notion of caring for AM and working sufficient hours to be able to afford a reasonable lifestyle in Sydney is overwhelming. She has been unable to locate reasonable accommodation at less than $200 per week, which she cannot afford. Since separation she has supported herself and AM on Centrelink benefits. The father has not paid child support.
The mother’s preferred option is that she and AM live in R, Queensland and that the father has school holiday contact for eight weeks each year. Ms SR has invited her to stay at her home until the mother has arranged her own accommodation. Ms SR has kept a watch on the local real estate advertisements, regularly providing the local newspapers and other information to the mother. I accept the mother’s evidence that she is able to rent a two or three bedroom home in good condition for about $135 – $150 a week. Although AM should have started school this year, he has not done so. The mother kept him back and intends that he starts school at R State Primary. This is the same school that Ms SR’s children attend. The school has indicated that they will accept AM at the start of 2004. Initially the mother planned that she would work in Ms SR’s mother’s bakery. Unfortunately, the baker resigned and the business failed. Presently, Ms SR’s mother is changing the bakery into a pizza shop. The mother does not know how many hours of work she would be offered or what she will earn. She would hope to limit her employment to school hours and hopes she would be paid between $11-13 per hour. The mother says that there are supermarkets in the R region with which she could inquire for work.
The mother has made inquiries of Qantas and Virgin Blue about the cost of travel between Brisbane and Sydney. Until he is 11 years old an air steward must accompany AM on Virgin Blue. The child’s travel costs will thus include his airfare as well as the air stewards. He can travel as an unaccompanied minor on Qantas although the mother indicated that their airfares are considerably more expensive. Her Internet inquiries reveal that Qantas fares start at about $200 each way. Virgin Blue charges between $120-170 each way, plus the costs of the air steward. As the contact proposed is school holiday contact, the airfares will probably be high season costs. Thus on Virgin Blue each return journey will be about $680 and on Qantas about $400. Although AM has flown a number of times, he has never flown without the mother. She says that she would accompany him on the first few flights until he was confident to travel without her.

Relevant law

Contact and relocation orders are parenting orders. The applicable law is well settled. These proceedings are conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child are the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the parenting arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act.
When the court is considering a residence or contact application that includes a proposed relocation the Full Court of the Family Court in A v A: Relocation Approach[5] identified the approach which judicial officers should take to the adjudication of these matters. The Full Court held[6]:
[5] (2000) FLC 93-035
[6] at paragraph 108 from 87,551 to 87,553
"It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way, which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'”.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act 1975 (Cth). The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s.60B provide guidance to a court's obligation to consider the matters in s.68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
i)A court will identify the relevant competing proposals;
ii)For each relevant s.68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s.60B;
·As one, but only one, of the matters considered under s.68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
iii). On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s.92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss.60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court."

Section 68F(2) factors – determining the child’s best interests

Because he is so concerned about losing his relationship with AM, the father has discussed the proposed relocation with him on a number of occasions. Using different formulations, one way or another AM has told his father that he does not wish to move away from him. AM has also told his father that he wants to live with him. It seems likely that AM is quite attuned to his father’s opposition to the relocation as well as influenced by his own concerns at loss of contact with his father. Because the father’s discussions with AM are likely to have been loaded by the father’s concern at losing time with AM, AM’s responses to him must be treated cautiously. Fortunately, Dr L explored AM’s wishes with him. Compared to the somewhat emotionally charged conversations with his father, Dr L provided a more neutral environment and hence one more likely to reveal AM’s wishes. Dr L reported:
“AM is only five years old, nonetheless he was clear in his statement with me that he wanted to stay with his father, rather than his mother. He told me he wanted this because his father bought him more things than his mother. However, AM was able to identify separately good things about both his mother and his father and was unable to identify anything he disliked about either. AM did not have any preference about living in Sydney or Queensland and the question appears to be too hard for him to answer. When I asked AM, he had been with his mother for the preceding five days.”[7]
[7] Page 9, exhibit B
The effect of Dr L’s evidence is that AM wishes to have a substantial and easy relationship with his father. He is used to spending a significant part of each week with his father and contemplates that he would enjoy more time with this father, certainly not less. Having spent the preceding five days with his mother AM was ready to stay with his father. I agree with Dr L’s assessment that his clearly articulated preference to live with his father was probably influenced by his usual routine whereby he was now to stay with his father for a number of days. It is not surprising that AM found the questions about living in Sydney or Queensland too hard. He is young and does not have the life experience or personal maturity to understand and weigh up the nuances of the competing living arrangements. Although his wishes have been influenced by his father, I am satisfied that AM has a genuine wish to enjoy both parents’ substantial involvement in his life. This finding favours the father’s application as compared to either of the mother’s. When Brisbane or Canberra is compared it weighs significantly in favour of Canberra rather than Brisbane.
AM has always lived with his mother. More than any other person she has been primarily responsible for his day to day care. When they travelled to England and during the first separation she was exclusively, as between the parties, responsible for AM’s care. When discussing his early years, she told Dr L that AM achieved his developmental milestones in accordance with his chronological age and that he was, “a perfect child”. She described AM as well behaved, an essentially happy and pleasant five-year-old. When discussing AM she spoke using warm tones and demonstrated her strong attachment to him. The mother impressed me as having invested time, energy and loving care into AM, which is reflected in his strong attachment to her. Because the father was late to his appointment with Dr L, Dr L had a prolonged opportunity to observe AM with the mother. For more than an hour she managed AM in what Dr L describes as, “a largely inappropriate space to manage a child for an hour”. She had prepared for the visit and brought with her a set of planned activities, puzzles and books that she used to keep AM entertained. Having acknowledged that AM is a, “delightfully even tempered young boy” Dr L was favourably impressed by the manner in which the mother skilfully maintained AM’s interest and humour. He concluded that AM is strongly attached to his mother. In my opinion it is a mutually strong relationship. The longest period that AM has been separated from his mother is when his maternal grandmother took care of him for four weeks when he was about three years old. Otherwise it has been for shorter periods when AM has been on contact with his father, the longest of which was during the 2002/2003 Christmas school holidays. Thus, AM’s attachment to his mother has an important feature, mainly stability. I am satisfied that he probably derives his sense of security and stability from his mother more than any other person.
AM has a strong and loving relationship with his father. During his early years, AM’s time with his father was limited by his father’s employment. During the second separation AM and his father had little meaningful contact. Fortunately for AM, his father appears to have realised before it was too late that he needed to involve himself more extensively in AM’s day to day care after he returned from Melbourne. He has done so and the child’s relationship with the father has flourished. In spite of criticisms levelled at the mother that she lacks commitment to the child’s future contact with his father, she has since separation done everything within her power to promote it. Without her strong support for contact, volunteered not ordered, AM’s relationship with his father would not have developed as strongly as it has. That is because of the father’s absence through employment, while AM was in England with his mother and then the long time that the father lived in Melbourne meant that their relationship was somewhat tenuous.
Since the parties established a shared care approach to parenting AM the intensity of the child’s relationship with his father has increased and their relationship has a much more solid basis than it did prior to separation. The quality of the relationship was apparent to Dr L who observed, “AM to be physically more affectionate with his father”. Dr L recognised that because AM had not seen his father for five days, he enthusiastically sought out the parent he missed. In a reverse situation had AM been with his father he would have expected AM to affectionately seek out his mother. With this caution in mind, he nonetheless observed and concluded “Mr M both encouraged more physical contact” and “AM sought more physical contact with his father”. The father deftly utilised objects in the observation room to amuse AM and, “Revealed a highly competent and child focussed approach to being with his son”. I am satisfied that the father and AM have a strong relationship. Just as the mother does, he invests a great deal of energy, affection and his available time with AM. Essentially there are four factors that are pivotal to the quality of the child’s relationship with his father. They are the child’s affectionate and good nature; the mother’s commitment to the relationship; the father’s commitment to the relationship; and frequency and duration of contact. Substantially reducing the frequency and duration of contact is likely to undermine the child’s relationship with the father. Rather than easy interaction, which comes from regular contact, large gaps in contact, particularly for a child of this age, make gaps more significant. The child and parent must devote more of their limited contact time re-establishing the easy familiarity that is maintained by regular contact. Potentially, contact that is limited to school holiday contact may put the father/son relationship under stress, both short term and long term.
As at the date of hearing I am satisfied that the mother is AM’s prime caregiver. Having adopted a traditional approach to child rearing and agreeing that the mother would assume primary responsibility for the care of their son and the father become the main breadwinner, this outcome was highly likely. I have already found that the mother has been the one truly constant figure in the child’s life. She has been intimately involved in his development and has nurtured him to a greater extent than any other person. His relationship with her is essential to his capacity to continue to develop as a happy well-adjusted child. That he is such a happy and well-adjusted child is overwhelmingly the result of her competent care and her commitment to her welfare.
It is axiomatic that a parent’s capacity to meet their child’s emotional and psychological needs is maximised if they themselves are settled, secure and happy. This is an important consideration for the child’s long term development and adjustment. The mother’s innate capacity to competently care for AM was enhanced by a number of factors. Prior to final separation, these include that she and the child had a home and were reasonably secure. She had comfortable relationships with Sydney based relatives who, along with the father, gave her practical assistance rearing a toddler. Since separation her personal circumstances have become increasingly difficult. She has had to live in shared premises and has struggled financially. Her closest friend has moved away and increasingly she feels deeply her continuing isolation from immediate family. I accept her evidence that being a single parent, primarily responsible for the financial support of her son without immediate family and close friends is wearing her down emotionally. She will need to return to work in order to provide financially for AM. Once she does so she needs the practical assistance of people who she and AM can rely upon. For example, when he is sick and unable to attend school, when school is cancelled or she is expected to attend work on short notice. The father says he can be relied upon. That is true, but only to the extent that her calls for assistance do not interfere with his employment. Having heard the father I have no doubt that he would give priority to the demands of his employment unless there was an emergency involving AM. The effect of all of this is that unless she has the opportunity of real financial and personal support her capacity to meet AM’s emotional and physical needs to the extent that she is capable of and which he is entitled will gradually falter.
In Brisbane the mother says that she will have the financial and personal support that she needs to maximise her capacity to provide AM with the high quality support and nurture he has received since his birth. I am satisfied that her friendship with Ms SR is strong and enduring. Ms SR will provide practical help, short term accommodation, impromptu babysitting, support and advice that the mother yearns for. When the whole of the Brisbane circumstances are examined, I am not persuaded that the mother will have sufficient income to provide for herself, AM and contribute to increased costs for contact. The evidence did not reveal what income the mother would earn and whether she would achieve her goal of living without social security support. Whilst she would have low cost housing and a living environment that is superior to that which she can create for herself in Sydney I was unsure about her capacity to contribute significantly to the costs of contact. Her affidavit was silent as to the actual costs that are likely to be incurred. When she explained these costs she emphasised that she could not afford to meet them entirely. Even if the father was paying child support. Yet her application was pressed on the basis that she would pay all the costs associated with AM’s return trip between Brisbane and Sydney.
In Canberra she can establish an environment which enables her to effectively parent AM without the demands of doing so wearing her down. Mrs HH and Mr L support the proposed relocation to Canberra. Mr L, her brother, operates his own tiling business and says he is, “in a position to give her work in my business and would be happy to accommodate what hours she could work provided that she had her own transportation”. Eventually they may buy a house together. This proposal is a more satisfactory proposal when examined from A’s perspective than the Brisbane proposal. The mother would have reliable employment, flexible enough to meet her needs as single parent. When the circumstances arise and she needs practical help caring for AM, that help is available from her mother in particular. Her mother hopes to retire within twelve months. She has a close relationship with AM and I am satisfied is prepared to assist her daughter and grandson with whatever practical needs the mother has. In Canberra the mother can create an environment that enables her to most effectively parent AM. Canberra does not bring with it the high costs of contact that her Brisbane proposal does. Because Canberra and Sydney are much closer the parties agree that alternate weekend contact is viable. This means that the father and child can maintain their strong relationship and have the opportunity to enjoy it to a reasonable extent.
The father acknowledged that once the mother starts work, which is likely to happen sooner rather than later, contact each weekend, was no longer reasonable. Hence on both parties’ case within a reasonably short space of time, no matter where the mother and child are living, the father’s contact will reduce. Not only will it reduce so that it is contact taken fortnightly, but will shorten so that it finishes on Sunday night. That is because the father’s working hours probably will not enable him to take AM to school on Monday mornings. Working his usual daytime shift, he must be at work before AM can be on the playground. This is a weighty matter that supports the mother’s application to live in Canberra with the child.
The most significant advantage of the father’s proposal is that he and AM would continue to have free and easy contact and he would have a greater opportunity to be meaningfully involved in his son’s care. The advantage of proximity of the parties home’s for AM is obvious. Even the Canberra proposal requires increased costs for contact and a tiring trip at the beginning and end of it. Tiring for the adults and certainly tiring for AM. Of course, this could be avoided if the father moved with the mother. I accept that his reasons for not moving are reasonable. His dilemma, with respect to him, is no less confronting than that which the mother faces.
Although little mention was made of them, it seems probable that AM’s relationship with both sets of grandparents is likely to be maximised if he lives in Canberra. In Canberra he will have ready and intimate access to his maternal grandmother, uncle and stepfather. Because his paternal grandparents live in Melbourne there is little distinction between the arrangements that can be established if he lives in Sydney or Canberra. From Brisbane AM has further to travel and the costs of that travel are more than the parties can reasonably afford.
Section 68F(2)(c) and (d) of the Family Law Act 1975 are pivotal to the resolution of this matter. Both of the mother’s proposals involve significant change. Within six months AM will start school and wherever she is living the mother will undertake at least part time employment. Even with these changes, the daily rhythm of AM’s life will still centre upon his mother’s primary care. Critical to my assessment of AM’s capacity to adapt to these changes is my assessment of the mother’s capacity as a parent and the nature of her relationship with her son. She is a competent parent who is extremely focussed on her son’s welfare and is attuned to his needs. Because of her skills and capacity as a parent she has the capacity to minimise the disruption to AM and to ensure that he takes these changes in his stride.
However, if at much the same time as AM is adapting to these significant changes, he must also deal with a substantial reduction in contact with his father, there is a strong prospect that, “in the short term at least his emotional world is likely to be upset”. I agree with Dr L that this outcome is probable even if AM were only faced with a significant reduction in contact with his father. Factoring in all of the changes that AM must make in the next six months that outcome is almost inevitable. If at the same time AM is starting school he is mourning the loss of regular contact with his father, potentially settling into school will be much more difficult for him. In my opinion, AM’s opportunity of starting school and progressing successfully is maximised if he does so within the context of ready access to both parents. This weighs in favour of the father’s proposal and strongly against the Brisbane proposal.
Dr L said, “There appears to be a lack of emotional vulnerability in AM, suggesting that he would accommodate to changes in parent contact over time”. After about six months and within the first year of moving away, even as far as Brisbane with all that entails, provided AM continued to live with his mother and had school holiday contact with his father, the emotional upset felt initially would pass. Thus potentially the long term ramifications of the mother’s Brisbane proposal for AM emotionally are not significant. Block holiday contact, will only give AM and the father the chance for four weeks holidays while the father has holidays. While the other four weeks must be taken whilst the father is at work. The father would place AM in school vacation care or friends and family would mind him. AM’s time with his father would be limited to weekends and before and after the father’s working day. No doubt, from AM’s point of view, it is better to have this type of contact than not have it. However, it is a poor substitute for the opportunity to have the type of rich contact that the father and AM have enjoyed to date. This type of contact will go a long way towards maintaining the child’s relationship with his father. It does not provide the opportunity for pleasure and child focussed activity that both father and son enjoy.
More relevantly I am not satisfied that these parties can afford the costs of return airfares between Sydney and Brisbane four times a year. Neither suggests that they could afford to commit to driving the child back and forth. Putting aside the money in order to facilitate this contact would place both of them under intense financial pressure. AM may well have to miss out on some of his reasonable financial needs being met and his standard of living would be comprised. Putting aside $2,800 (approximately) is more money than these parties, individually or together, can reliably put aside. Although she would have the court accept otherwise and despite her commitment to contact, I am not satisfied that the mother could maintain contact between Sydney and Brisbane four times a year indefinitely. Almost certainly the frequency of contact would lessen and the gaps between contact lengthen. This would be distressing for AM and his father in the short term and potentially damaging to their relationship in the long term. I give this factor considerable weight. It influences in a material way my comfortable satisfaction that the Brisbane proposal is inconsistent with the child’s best interests.
The same difficulties do not arise with the mother’s Canberra proposal. Irrespective of her proposed relocation to Canberra, both parties agree that the frequency of contact will reduce. Both agree that AM’s relationship with his father will continue to be nurtured and grow if contact takes place no more often than alternate weekend and during school holidays. This will involve about a three-hour drive at the start and end of contact, in relation to which I agree with the father, will be tiring for AM. However, it is not likely to be so debilitating that alternate weekend contact should not happen, nor that it will diminish the quality of that contact. The father’s approach that because she is the parent moving away the mother must do all of the driving for contact from Canberra is unreasonable. As a single working parent with a school age child, the court should not in effect punish a parent because their circumstances have forced change. These parties will share the effort of contact between Sydney and Canberra, meeting at a half way point at the start and end of contact. Should the mother be visiting Sydney she must give the father advance notice and on that occasion will be responsible for all of the travel.

Much was made by the mother’s counsel of the father’s failure to pay child support. I accept the father’s evidence that he and the mother had an agreement, which acknowledged that he had to repay significant debts after separation. Throughout the period the mother has been in receipt of a Centrelink benefit, yet no action has been taken by her or the Child Support Agency to assess or collect child support from him. This suggests that the combination of his relatively modest income, substantial contact with AM and the agreement resulted in the father not being liable to pay child support. Once the mother relocates the father’s contact will reduce and his child support liability will increase. He is a salaried employee and the Child Support Agency can readily secure his child support liability.
The mother’s case was presented partly on the basis that the father has harassed her since separation and that he has taken every opportunity to control her. Control her financially and emotionally. This, it was submitted, is why the father has failed to pay child support and one of the reasons the mother is motivated to relocate. She said only with real geographic distance can she be free of the father. The mother complained that prior to separation the father had listened in on her telephone calls. He did this once. She said he had agreed that she could move to Queensland, only to change his mind a short time later. I accept the father’s evidence that he did not ever agree that the mother could live with AM in Queensland. The mother complains that at contact collection the father sits in his car outside and waits for her to see that he has arrived. The father agrees that he does this, fearful that entering the mother’s property may result in an application for an apprehended violence order or some other complaint about his behaviour. I do not understand why the mother criticises the father for his approach. On the weekend of 12 and 13 July 2003, the parties agreed that AM would remain in his mother’s care. Nonetheless on 12 July 2003 the father went to the mother’s home to see AM. He says he thought carefully before doing so, but because he had previously been criticised for not seeing AM, decided he should drop in. He showed an extraordinary lack of judgment in doing so. Not surprisingly, the mother abused him and the whole episode was a sorry affair, examined from all parties’ perspective. It was suggested that this is another instance of the father trying to maintain his relationship with the mother and had nothing to do with an ostensible desire to see AM. I accept the father’s evidence as to being genuinely motivated to seeing AM and not driven by a desire to see the mother.
However, I well understand why the mother believes that the father has not yet emotionally accepted that their relationship is over. Attached to her affidavit are numerous letters sent to her by the father. Generally, the tone of the letters is intimate and indicates strongly that the father would like to reconcile. The father said that about six months ago he finally accepted that there was nothing he could do to reconcile with the mother. At this point, he realised he had to let her go. He blames the mother for the breakdown of their relationship and considers that she has caused him and AM a great deal of unnecessary pain. Even during this litigation the father has written to the mother hoping to restore their relationship. At an intellectual level he may accept that their personal relationship is over. Emotionally he still hopes for a different outcome. That he keeps his hope alive does not mean that the mother needs to move away in order to have personal privacy from him. The father does not interfere with the mother’s daily existence and she can go about her life in their community without intrusion from him. Generally, I accept that the father has not sought to maintain control over the mother since separation and that his opposition to her relocation is motivated by his concern for his relationship with AM. It has nothing to do with his lingering hopes for his relationship with the mother. This issue does not weigh in favour or against the mother’s application.
The father rejected the court expert’s opinion and mother’s claim that he makes inappropriate remarks to AM about her. At times AM returns from contact repeating comments that she believes have been made about her by his father. Dr L corroborates her concerns. For example Dr L reports “At one point Mr M appeared to be telling me that he had long conversations with AM about how bad his mother was, and her friends, but then later told me he did not do this. I had the opportunity to observe Mr M talk in disparaging ways about his wife and her alleged lover (his former best mate and now sharing a house with Ms L) in front of AM.” Later when Dr L raised this issue with him the father denied any recollection of it. I accept Dr L’ opinion that the father’s negative comments about the mother to AM, “Are so automatic he is unconscious of them”. During cross-examination the father outlined a conversation with AM to the effect, “You have to be good for mum or you will get into trouble and I will too”. This statement was intended to reinforce the father’s positive approach to the mother. The father clearly did not agree that the remark was impliedly, if not explicitly, negative about the mother. I share Dr L’ concern that the father appears to have little insight into his almost mantra like criticisms of the mother to AM. He must consider carefully his approach taken to date and change it. If he is unable to do so without assistance, then it is his obligation to obtain counselling advice so that he can. If he does not do so, AM will probably become increasingly critical of him as he recognises that his father’s rhetoric does not match reality.
Fortunately, there are no risk issues that require lengthy consideration. Both parties have been recreational drug users, preferring particularly marijuana. I accept the father’s evidence that he has been drug free for quite some time. There is evidence that suggests that the mother may still use marijuana on occasion, but not to the extent that it interferes with her capacity to take good care of AM
As far as possible the court should make orders that minimise the prospect of further proceedings. Because I am satisfied that the mother cannot afford contact with the frequency that her application proposes, there is a real likelihood that there will be further proceedings concerning contact and its enforcement should she move to Brisbane. Similar issues do not arise should the mother move to Canberra or stay living where she is. This factor weighs against the mother’s proposed move to Brisbane.

Conclusion

Since separation AM has thrived with the active input of both his parents in his life. In effect, the parties have shared his available time between them. I agree with Dr L’ conclusion that AM has a good relationship with both of his parents and enjoys the company of both. He is strongly attached to both of them and would be upset if one or other parent were to move away. Both parents are motivated to provide for him to the best that they can do so. Having weighed up the relevant options available to her, the mother recognised that continuing to live in Sydney as a single parent, isolated from those who are dear to her places unreasonable strains on her capacity to meet AM’s physical and potentially also his emotional needs. She has long had a desire to live in Queensland and now that her best friend is living at R, wishes to join her. Here she believes she will have practical and emotional support and a greater opportunity for financial security. Whilst I accept the former, I do not accept the latter. The fundamental difficulty with her Queensland proposal is that these parties cannot reasonably afford to give effect to orders for regular contact in New South Wales. Finding the money to do so will potentially deprive AM of a reasonable standard of living. It may have a similar consequence for both of his parents.
I have not lost sight of the mother’s right to live where she chooses. However that right “Must defer to the expressed paramount consideration, the welfare of the child” U v U (2002) FLC 93-112 at par 89. Unless contact is maintained during each school holiday AM will be deprived of the enjoyment of his relationship with his father to the extent that he is entitled to have it. Put simply, this child needs more frequent and reliable contact with the father than the mother’s Brisbane proposal will permit.
The court was invited to consider her Canberra proposal only if satisfied that orders predicated on her relocation to Brisbane were refused. The Canberra strategy ensures that AM and his father will maintain frequent contact. This contact does not carry the financial burden that the Brisbane proposal demands. Both parties have the time and resources to give effect to regular contact. Such changes as this proposal involves may be unsettling in the short term, but do not carry long term ramifications for the child’s emotional or psychological wellbeing. The Canberra proposal does not have the potential to disrupt the child’s settling into school or potentially adverse impact upon his relationship with his father. In Canberra the mother will have family support and the opportunity to achieve a degree of financial independence. I have already addressed the long term benefits to her and AM of this outcome. Although the father will be deeply distressed by the child’s departure from his local environment I am satisfied that his best interests will be served living with his mother in Canberra. The father’s application does not address the real financial and personal deprivation that the mother must endure. I have already made findings concerning the consequences to her and the child if she must continue to live in Sydney. In Sydney she cannot provide a reasonable standard of living for AM and does not have the emotional and practical support that she needs. The father’s application will thus be refused.
The orders will give effect to these findings. In addition to orders for regular contact the orders will ensure that the father is made aware of significant events concerning the child’s health and education.

I include an injunction that will restrain the parties from speaking about the other in a negative fashion within AM’s hearing. Generously, the mother proffers this order on a mutual basis. I do not have the same concerns about her that I have about the father. However, as she submits to such an order it will be made. Otherwise, the orders are largely machinery in their nature and provide for regular and extensive contact between AM and his father.
For these reasons I make the orders identified at the start of this judgment. I am satisfied that they are in the child’s best interests.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 28 August 2003