D & J
[2006] FMCAfam 323
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & J | [2006] FMCAfam 323 |
| FAMILY LAW – Residence – relocation – Rice and Asplund – the child’s best interests – the child’s relationships – practical difficulties and expense of contact – parent’s regular changes in address – parenting capacities – fostering the relationship with the other parent. |
| Family Law Act 1975, ss 60B, 65E, 68F |
| A v A: Relocation Approach (2000) FLC 93-035 AMS v AIF (1999) 199 CLR 160 B and B: Family Law Reform Act1995 (1997) FLC 92-755 Bennett and Bennett (1991) FLC 92-191 D and Y (1995) FLC 92-581 King and Finneran (2001) FLC 93-079 Rice and Asplund (1978) 6 FamLR 570; (1979) FLC 90-215 |
| Family Law Council, Relocation, Discussion Paper (February 2006) |
| Applicant: | MJD |
| Respondent: | PWJ |
| File Number: | CAM 630 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 9 and 10 February 2006 |
| Date of last submission: | 14 March 2006 |
| Delivered at: | Canberra |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Nash |
| Solicitors for the Applicant: | Farrar Gesini & Dunn |
| Counsel for the Respondent: | Mr G Brzostowski SC |
| Solicitors for the Respondent: | Crowley Clifford Simpson |
ORDERS
All previous orders be discharged.
The child, LDJ born June 2002, reside with the mother.
The mother be permitted to change the residence of the child to Launceston, Tasmania.
The mother and father each have joint responsibility for the long term care, welfare and development of the child.
The mother and father each have sole responsibility for the day to day welfare and development of the child whilst the child is in their respective care.
The child have contact with the father:
(a)Until the mother relocates to Tasmania in accordance with the orders made by this Court on 8 June 2004;
(b)During 2006 and 2007:
(i)On eight occasions each year (pro rata for 2006) for up to six nights duration on each occasion;
(ii)This contact commence on or about midday on the first day of contact and cease on or about midday on the last day of contact. The exact times for contact be subject to flight availability;
(iii)The first contact period pursuant to this paragraph commence approximately six weeks after relocation to Launceston and occur at approximately six weekly intervals thereafter. Each contact period commence on a Thursday and conclude on a Wednesday unless the parties otherwise agree;
(iv)The period of contact scheduled to occur around Easter of each year commence on the Thursday prior to Easter and conclude on the Wednesday after Easter;
(v)Handover for the purpose of contact occur at Canberra Airport.
(c)From 2008 (the year that the child commences primary school):
(i)For the first half of all school holiday periods commencing in years ending in an odd number and the second half of all school holiday periods commencing in years ending in an even number;
(ii)On a mid term weekend each school term for not less than four consecutive nights.
(d)From the commencement of high school for the first half of all school holiday periods commencing in years ending in an odd number and the second half of all school holiday periods commencing in years ending in an even number.
(e)In Tasmania for up to three consecutive nights on four occasions each year:
(i)This contact be at the expense of the father. Any contact to occur pursuant to this sub-paragraph, unless the parties agree otherwise, commence at 5:00 p.m. on the Friday night and conclude at 9:00 a.m. on the Monday morning;
(ii)Handover for the purpose of this contact occur, unless the parties otherwise agree, by way of the father collecting the child from the mother’s residence at the commencement of contact and returning the child to the mother’s residence at the conclusion of contact;
(iii)The father provide the mother with one month’s written notice of his intention to exercise contact in accordance with this sub-paragraph.
(f)By telephone each Wednesday and Saturday nights between the hours of 5:00 p.m. and 8:00 p.m. with this phone call to be initiated by and paid for by the father. This contact may include contact by way of web cam if this is available to both parties.
(g)For such further or alternative periods as may be agreed between the parties from time to time.
(a)The mother pay two thirds and father one third the costs of travel for the child for the purpose of contact pursuant to Orders 6(b), 6(c) and 6(d) above.
(b)Each party advise the other party at least one month prior to the scheduled time for contact of the itinerary for the child.
When the child is able to travel unescorted on a flight from Melbourne to Canberra (expected to be when he is 5 years old):
(a)The mother telephone the father within 30 minutes of the following:
(i)The child’s departure from Melbourne at the commencement of contact; and
(ii)The child’s arrival in Melbourne at the conclusion of contact;
(b)The father telephone the mother within 30 minutes of the following:
(i)The child’s arrival in Canberra at the commencement of contact; and
(ii)The child’s departure from Canberra at the conclusion of contact.
(c)The purpose of paragraphs (a) and (b) above is to ensure that both parties are advised that the child has departed and arrived safely.
When the child is in the father’s care the mother may telephone the child between 5:00 p.m. and 8:00 p.m. on one occasion during each period of contact, and in default of agreement, on Saturday night between 5:00 p.m. and 8:00 p.m. The mother pay the costs of such telephone contact.
In 2006 the contact period pursuant to paragraph 6(b) that is to occur in December 2006 include 31 December 2006 and 1 January 2007.
In 2007 the contact period pursuant to paragraph 6(b) that is to occur in December 2007 include 24 December 2007 and 25 December 2007.
The child have telephone contact with the father on Father’s Day and on the father’s birthday.
The child have telephone contact with the parent with whom he is not then with on each of the following days:
(a)Christmas Day;
(b)Easter Sunday; and
(c)The child’s birthday.
The mother and father inform the other if the child attends any medical practitioner or medical specialist and provide all contact details of any attending medical officers to each other.
Each party inform the other as soon as possible if the child is hospitalised for any reason whilst in their care. No limit be placed on the attendance of either parent at any hospital if the child is a patient at that hospital.
The mother inform the father of the contact details of any school the child attends.
The father be at liberty to attend any schools in which the child is enrolled.
The father be informed of any special dates for the child within the school calendar such as sports days, presentation nights or parent teacher nights as soon as possible after the dates are known to the mother. The father have liberty to attend at any of these events if he would like to do so.
Neither parent say unkind or uncomplimentary things about the other parent in the presence of the child, nor cause or allow anybody else to do so.
Both parties inform the other of names of any other people living with the child when the child is with them.
The mother and father keep each other informed of their current contact details including telephone number, facsimile number, email address and street address.
Contact between the parties (whether by telephone, facsimile, email or letter) only occur for the purpose of discussing the care, welfare and development for the child or contact arrangements.
Pursuant to s.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.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Canberra |
CAM 630 of 2005
| MJD |
Applicant
And
| PWJ |
Respondent
REASONS FOR JUDGMENT
The parents, MJD and PWJ, have one child, LDJ, who was born six months before they separated and is now four years old. He has lived with his mother and had regular contact with his father ever since. The mother now wishes to move from Wollongong to near Launceston in Tasmania. The father wants LDJ to live with him at Gundaroo near Canberra.
The mother is 32. In February 2004 she commenced a relationship with AC to whom she is now engaged. He moved to Tasmania in November 2005.
The father is 34 and is engaged to MM who has been living with him since March 2003. They have a baby son, A, born November 2005. Their home is at Gundaroo.
There have been two sets of parenting orders for LDJ – consent orders of the Family Court of 11 April 2003 and consent orders of this Court of 8 June 2004. The mother is prevented by the latter orders from relocating more than 50 kms from Wollongong.
The applicable law
Residence, contact and specific issues orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B of the Act sets out the objects of Part VII and the principles which underlie those objects. They are subject to section 65E which provides that in determining the outcome the best interests of the children is the paramount consideration. This is the overriding principle. In B and B: Family Law Reform Act1995 (1997) FLC 92-755 the Full Court of the Family Court said:
In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII [of the Act] of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The principles set out in section 60B(2) have particular relevance in these proceedings. They are:
a. children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b. children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c. parents share duties and responsibilities concerning the care, welfare and development of their children; and
d. parents should agree about the future parenting of their children.
These provisions emphasise the desirability of regular involvement of both parents in their children’s lives. The involvement and responsibilities ideally should be shared. The 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 a case where a party seeks to vary existing orders, it is generally appropriate to have regard to the threshold test and apply the principles derived from Rice and Asplund (1978) 6 FamLR 570; (1979) FLC 90-215. In that case the Full Court of the Family Court held that:
… the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied … that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
The decision in Rice and Asplund has been subsequently followed in a series of cases (for example, D and Y (1995) FLC 92-581; King and Finneran (2001) FLC 93-079). In King and Finneran, Collier J sitting on appeal explained the way in which the Court should apply the test:
44.To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary, collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision.
…
49.…this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50.…The changed or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
I deal with the question whether Rice and Asplund applies in the current matter later. If it does and this threshold is met, or if it does not apply, the Court must then determine the issues in the ordinary way. Section 65E requires the Court to “regard the best interests of the child as the paramount consideration” when deciding whether to make a particular parenting order.
Having reviewed various authorities on relocation, especially since the 1999 High Court decision in AMS v AIF (1999) 199 CLR 160, the Family Law Council summarised the relevant principles for relocation cases at [3.35] of its February 2006 Discussion Paper on Relocation:
·Relocation cases are not a special category of cases. The Family Law Act does not specifically mention ‘relocation’ and the cases are best described as “parenting cases where the proposal of one of the parties involves relocation”.
·The best interests of the child is the “paramount consideration, but not the sole consideration”. For example, the interests of the parents can be considered if they are relevant to the best interests of the child.
·The court must consider the competing proposals for the future care of the child, but is not limited to the proposals presented by the parties. All the proposals need to be evaluated in terms of the advantages and disadvantages for the best interests of the child and the court should explain why a particular proposal is preferred.
·The issue of relocation cannot be separated from the issue of residence and the best interests of the child. The relevant factors in subsection 68F(2) must be considered and the weight given to each should be explained by the court. The object and principles in section 60B provide guidance for this exercise.
·A court cannot require the person who wishes to relocate to demonstrate “compelling reasons” for relocation as this would incorrectly focus on the parent’s interests instead of the best interests of the child.
·It should not be assumed that the contact parent cannot relocate as well, as the interests of the child (not the parent/s) must be paramount.
Section 68F(2) sets out the matters that the Court must consider to the extent that each is relevant when determining what is in a child’s best interests in residence, contact and other parenting arrangements. 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 (see B and B: Family Law Reform Act1995).
The issues
The major areas of contention that have arisen in this case relate to:
·changes in circumstances since the consent orders of 8 June 2004
·LDJ’s relationships
·practical difficulties and expense of contact
·the mother’s previous changes in address
·parenting capacities
·fostering the relationship with the other parent
·other advantages and disadvantages.
Changes in circumstances
The current orders for LDJ’s residence and contact were made by consent on 8 June 2004. They include a restriction on relocating more than 50 kms from Wollongong.
The question arises whether the threshold test enunciated in Rice and Asplund and relevant later authorities must be met. It may be that as this is a relocation case the Rice and Asplund does not apply. However, for reasons I now give the threshold test is satisfied in any event.
Mr Nash for the mother says that there are a number of matters that justify reopening the consent orders
·the mother and AC have developed a significant relationship
·they first met in February 2004
·they became engaged and are contemplating marriage
·they commenced living together in July 2004
·AC had always intended to return to Tasmania to live
·he postponed this move from late 2004 until November 2005 in the expectation that a decision would have been made by then on the relocation issue
·the mother wishes to relocate to Tasmania to join AC
·she will be able to improve her lifestyle in Tasmania with a partner and other supporting relationships.
Mr Brzostowski for the father submits that this is a case where there have been two sets of consent orders within a very short period of time. There has been no significant relevant change which would justify revisiting the issue of LDJ’s residence. AC was already on the scene in June 2004. Both he and the mother knew that he wanted to return to Tasmania and that she had duties under consent orders going back to 2003.
I am satisfied however that taken collectively the changes referred to by the mother are of sufficient significance to require reopening the consent orders. The proposal to relocate is in itself such a significant change that the Court has to make consequential determinations of the fresh issue and the associated question of future residence and contact. I also note that the father is himself also seeking altered arrangements with him becoming the resident parent.
Furthermore, as will become obvious, I have reached the view that residence and relocation with the mother are in LDJ’s best interests. I should give effect to this (Bennett and Bennett (1991) FLC 92-191 at 78,262).
The competing proposals
There appear to be four competing proposals:
·continuation of the consent orders with LDJ residing with the mother in the Wollongong area
·the mother’s proposal for relocation of LDJ to live with her and AC near Launceston in Tasmania
·the father’s proposal that LDJ live with him at Gundaroo near Canberra, irrespective of whether the mother moves to Tasmania
·the father moving to Tasmania, with LDJ either residing with him or the mother.
Realistically the last is not a practical proposition:
·the father has recently moved with his partner MM into a new house he built at Gundaroo
·MM’s mother and stepfather plan building near by
·the father and MM have a new son, A, born on November 2005
·the father is employed in Canberra
·he has an important local support network.
Furthermore, the mother has said she does not wish me to consider this option.
Best interests of the children
Continued residence with the mother in Wollongong, residence and relocation with the mother in Tasmania and residence with the father at Gundaroo are the only realistic options.
The best interests of LDJ is the paramount consideration, but not the sole consideration. In determining the best interests I am bound to consider the matters set out in s.68F(2) of the Act in so far as they are relevant.
LDJ’s relationships
LDJ has lived with his mother continuously since his parents separated in December 2002 when he was six months old. His mother’s strong and caring relationship and his dependence upon her is not questioned. The evidence also attests to LDJ developing a close relationship with AC since he met the mother. AC provided support to the mother especially after he moved in with her in July 2004. He also looked after LDJ when the mother was unavailable. Nevertheless, AC has not attempted to replace the father in his role.
The mother accepts that the father is very dedicated to LDJ and is a capable parent. He takes his parenting role very seriously. LDJ is always happy to see him. They enjoy a loving relationship. It is clear that it is well established. The father has had extensive contact with LDJ since separation – both day contact and many overnight sessions, including periods of four successive nights on a couple of occasions.
There can be no doubt that MM has played an important role in LDJ’s life since she started living with the father in March 2003. Her mother and stepfather are also involved when they visit Gundaroo where they are planning to build.
From the father’s perspective the most important new relationship for LDJ has come with the birth of his and MM’s son, A, in November 2005. LDJ sees himself as A’s “big brother” and actively participates in A’s life.
The mother’s proposal for relocation has obvious implications for the father’s regular contact which he currently exercises for two nights each fortnight. The mother proposes instead six block periods for six nights. LDJ would thus see his father less regularly but for longer periods.
In my view this is unfortunate but would not be disastrous. Although LDJ is now only four, he has developed a loving and close relationship with his father. The bond is well established. Provided the contact I propose, initially on at least eight occasions each year, is undertaken LDJ should be able to continue a fruitful relationship. The same applies to MM and her family.
LDJ’s relationship with A must of necessity be only formative at this stage. Developing a special relationship with him is very important. While relocation and less frequent contact will place some check on this, it will not be impossible. Some compensation will be provided with the longer if less regular blocks of contact proposed.
The probable impact of the father’s proposal for residence on LDJ’s relationship with his mother would in my view be much more significant. LDJ has lived with his mother all his life. She has been his primary carer. His primary attachment is to her.
If LDJ’s residence was altered to his father at Gundaroo and the mother moved to Tasmania, the father proposes nine nights block contact with the mother each month. If she remained in Wollongong the father suggests six nights each fortnight.
If there were good grounds for taking LDJ from his mother’s residential care, these periods may well be adequate. In this case I have found no such grounds. It is not in the interests of a four year old with a strong bond with his primary carer to reduce his time with that carer so significantly.
Practical difficulties and expense of contact
There is a relatively small financial cost to both parents with the father’s current fortnightly contact with LDJ. This results from the father and mother living in Gundaroo and Wollongong. Changeover takes place at Exeter which is closer to Wollongong than Gundaroo.
It is obvious that a move by LDJ to Tasmania with his mother will considerably add to the difficulty and expense associated with contact with the father. LDJ will need to travel by air from Launceston to Canberra via Melbourne. As he is four he will need to be accompanied for some time.
This problem arises because of the mother’s proposal to move to Tasmania. The mother proposes to teach fulltime in Tasmania and will have the capacity to cover the additional expense. Although it will impose a burden, it is fair that she meet a significantly greater proportion of contact costs if she relocates. This will allow the father to maintain the best personal contact with LDJ in the circumstances.
The mother’s previous changes in address
Much was made by the father of the six changes in address the mother and LDJ have had since separation. The last move was in April 2005. The proposed move to Tasmania would be the seventh. The father said this highlighted the mother’s instability and “inability to stick with anything”. Although he could point to no supporting evidence, he imagined that it upset LDJ’s everyday life. The father complains that the moves were made without notice or consultation.
However, I accept the mother’s point that the application to relocate to Tasmania is only the second substantive move by the mother since separation. The first was in February 2003 from Burra to Elderslie where she stayed temporarily with her cousin for six weeks. All other moves have been to addresses in the Wollongong/Illawarra area. Two were to a home she owned which she subsequently sold.
Although the father is critical of the mother for these six changes in address, he accepted that he has changed his address four times over the same period. He had not consulted the mother before moving to Gundaroo. He agreed that none of the mother’s moves were in breach of court orders. He did not question the standard of any of the premises, apart from some concern that one did not have a suitable backyard.
I therefore reject the father’s contention that these changes evidence instability in the mother’s lifestyle. While too frequent moves may well be undesirable, there is absolutely no evidence of any adverse consequences for LDJ from the changes he experienced.
Parenting capacities
With the exception of the father’s assertion of the mother’s instability which I have rejected above, there is nothing in the evidence to cast doubt on the parenting capacity of either parent. In my view both parents have capacity to provide for the physical, intellectual and emotional needs of LDJ.
The father made no criticism of the standard of the mother’s parenting apart from the issue of a backyard at one home and her relocation proposal. He agreed that LDJ is a credit to her - “a lovely boy”. Likewise nothing of substance was adduced reflecting on the father’s capacity. Both parents are intelligent, well educated and in good employment.
Fostering the relationship with the other parent
The father submitted that I could have no confidence that the mother would promote LDJ’s relationship into the future. He pointed to a series of incidents from soon after separation to the June 2004 consent orders, including:
·“tyre trouble” and the mother’s departure from Burra to Elderslie in February 2003
·numerous failures to provide contact on the basis that LDJ was unwell
·failure by the mother to provide contact because she was going away
·technical objections by the mother to contact or make up contact - no make up contact provision in the orders or “if I don’t agree, contact does not occur”
·a proposal in August 2003 for a reduction in contact time
·refusal of the mother to allow overnight contact in December 2003 and January 2004 despite the father having had regular previous overnight contact
·failure to advise the father that she would be in Canberra at Christmas in 2003. Had she done so it would have enabled LDJ to have additional time with his father
·the commencement in February 2004 of proceedings for an apprehended violence order for alleged harassment by phone and failure of the father to leave after contact in November 2003, subsequently withdrawn
·arranging for a friend to care for LDJ while she was in hospital in March 2004 even though the father was unemployed.
It is unnecessary to make specific findings on each of these allegations as the mother accepted that they were broadly correct. She candidly agreed that she could have handled matters better. She had been overwhelmed, overreacted and not acted rationally.
In my view the mother’s attitude to the April 2003 orders was somewhat cavalier and controlling. At that time there was a high degree of tension between the parties. Both parents admit that communication was poor with fault on both sides.
Things have improved vastly since the June 2004 orders. The father had no real complaints under cross examination. He says that contact has taken place largely in accordance with the orders: “LDJ has never failed to make a weekend since those orders were made”. The mother has enabled the father to attend medical and other appointments or provided reports subsequently to him. The father accepts that “to some degree” the mother is supportive of his relationship with LDJ. She for example promotes it by talking about A and the activities he engages in.
The mother asserts that it is probable that the father if given residence would not and could not promote the relationship between LDJ and her. After having signed consent orders in both April 2003 and June 2004 and having made no application for residence until his response in May 2005, he puts forward in this case all the problems of 2003 and 2004. He did not make an application at the time these incidents occurred. The mother refers to the father’s attitude to child support and the timing of his application for residence. She says his attitude to her is “negative, critical and dismissive”.
On all the evidence I am satisfied that each parent will foster and promote LDJ’s ongoing relationship with the other. 2003 and 2004 were undoubtedly difficult years. The mother reacted badly. I am of the view, although somewhat cautiously, that that is past. I have seen nothing of substance to suggest that the father will not promote LDJ’s relationship with his mother.
Other advantages and disadvantages
The mother wishes to move to live with her fiancé, AC, near Launceston. Although he is South Australian by birth, AC lived and worked in Launceston from 1994 to 2000. He has always wanted to return as he regards it as his home and it allows him to engage more fully in his sporting and outdoors interests.
AC delayed his return to Launceston for a year hoping for a decision in this case. He moved back in November 2005 and lives on a property he purchased and in which the mother has a significant equitable interest. He is employed full time at a Launceston school.
The mother gave evidence of her personal circumstances and how she sees them impinging on her ability to adequately care for LDJ. Understandably she is very keen to live with her fiancée. He assisted looking after LDJ on those occasions when she had other obligations. Now she has to organise childcare if she a commitment outside normal working hours.
She has also lost her main support group – her local church. Many of its members no longer have anything to do with her, apparently because of her living in an unmarried relationship with AC.
The mother testifies that as a result she is anxious, unsettled and unhappy in Wollongong. With no daily support from her partner she is suffering increased stress, easily upset and is having difficulty sleeping. Some corroboration is provided by the evidence of Ms M Bloom, a clinical psychologist who has been providing counselling to the mother. Ms Bloom was not required for cross examination. The mother had been extremely anxious and distraught shortly after AC left for Tasmania. It should be noted that it seems some of this stress was a consequence of another impending court case. Ms Bloom also says that the mother would still be able to cope with her job and her care of LDJ even if she stays in Wollongong and AC lives in Tasmania.
Although AC has no family near Launceston, he has developed close relationships with a number of families two members of whom also provided affidavit evidence. The mother believes therefore that she will have the support network she requires in Tasmania. Furthermore she has an offer of full time employment as a teacher.
The mother put forward some information comparing her financial circumstances in Wollongong and Launceston. I have disregarded these figures as I agree with the father they are misleading. I am not however prepared to find that they were designed to mislead the Court as asserted by the father. In my view it is more likely the mother misunderstood the task she was undertaking.
I also do not place much weight on the lifestyle benefits the mother says would accrue in Launceston. It seems to me that these are more likely for the mother and AC than for LDJ. Nevertheless, to the extent they contribute to the mother’s happiness and contentment, there no doubt will be a flow on to LDJ.
I have discussed earlier in these reasons the disadvantages to LDJ of moving to Tasmania. These importantly include the effects of the reduction in frequency of contact that he will have with his father, his brother A and his father’s partner and her family. I accept that there will be some grieving, some loss of paternal input and sadness in not being able to be with them as he is at present.
Conclusions
The three competing proposals for LDJ are continuation of the current arrangements with the mother in Wollongong, residence and relocation with the mother to Launceston and residence with the father in Gundaroo.
I have reached the conclusion that the best interests of LDJ are served by him continuing to live with his mother and allowing his relocation with his mother to Launceston:
·LDJ has lived with his mother all his life
·she has been his primary attachment and carer all his life
·since separation in December 2002 he has only lived with his father on contact visits
·LDJ has a close and loving relationship with his father
·less regular contact for LDJ with his father is unfortunate but not disastrous
·at four the bond he has with his father is firm and well established and is unlikely to be broken provided adequate contact arrangements are put in place and that contact takes place
·it is important that LDJ be able to develop a special relationship with his brother A. Relocation will place some check on this but not make it impossible
·the impact on LDJ of changing residence to his father would be much more significant
·contact with the father after relocation to Tasmania will be very much more expensive, but the parties have the capacity to cover this. I propose that the mother bear the greater proportion of this expense
·the father has not established instability in the mother’s lifestyle
·there is no evidence which casts doubt on the parenting capacity of either parent
·they both are able to provide for LDJ’s physical, intellectual and emotional needs in ample measure
·I am cautiously confident that each parent will foster and promote LDJ’s relationship with the other
·the mother’s primary support network in Wollongong, her church, is no longer available
·Launceston offers much better prospects for ongoing support with AC and the friendships the mother has developed through him.
I am conscious of the importance of a parent’s right to freedom of movement and that the authorities have emphasised that to the extent that this freedom impinges upon the best interests then it must give way (A v A: Relocation Approach (2000) FLC 93-035 at [93]). As I have found that LDJ’s best interests involve continuing residence and relocation with his mother, there will be no impediment to the mother’s freedom of movement.
Contact with the father is of necessity going to be more difficult and expensive. But it is critical for LDJ’s interests that it continue and his relationship develops. I therefore propose to impose the following contact regime from relocation:
·eight occasions each year of upto six nights duration until LDJ commences primary school in 2008, with 2006 on a pro rata basis
·half school holidays during primary school plus one mid term weekend each term for not less than four consecutive nights
·half school holidays once LDJ commences high school
·up to three consecutive nights on any additional four occasions each year in Tasmania
·at any other time agreed between the parties.
It is fair that as the mother is moving she should meet the greater proportion of LDJ’s contact travel expenses. I propose that she pay for two thirds of the travel expenses for contact visits to Canberra. The father shall meet all other travel costs including those associated with any contact he has in Tasmania.
I expressed some concern earlier about the mother’s attitude to contact prior to the June 2004 orders. I am satisfied that this has significantly changed. The Court’s orders must be followed, but also observed in spirit, if LDJ’s best interests are to be advanced. As I noted at the hearing the Court is empowered to reverse the contact arrangements if the orders are not complied with.
I am satisfied that the orders set out at the commencement of these reasons are in LDJ’s best interests. Accordingly I make those orders.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Beau Wilson
Date: 30 June 2006
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