Danes and Kennedy

[2014] FCCA 495

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANES & KENNEDY [2014] FCCA 495

Catchwords:
FAMILY LAW – Children – relocation – where time with other parent will not decrease as a result of relocation.

Legislation:

Family Law Act 1975, ss.60I, 69, 60CC, 65DAA, 60B, 60CA, 61DA, 65D,
65DAB, 67ZBB, 4AB,

Evidence Act 1995, ss.79, 69
Crimes (Sentencing Procedure) Act 1999, s.9
International Convention of the Rights of a Child

Roach & Ors v Page & Ors (15) [2003] NSWSC 939
Roach & Ors v Page & Ors (27) [2003] NSWSC 1046
Beaumond & Hardiman [2013] FCCA 1173
Johnson & Page (2007) FLC 93-344
Browne v. Dunn (1893) 6 R. 67, H.L.
U & U (2002) 211 CLR 238
Goode & Goode (2006) FLC 93-286
Marvel [2010] FamCAFC 101
Sayer & Radcliffe and Anor [2012] FamCAFC 209
Mazorski & Albirght [2007] FamCA 520
AIF & AMS [1999] HCA 26
Harrison & Woollard (1995) FLC 92-598
R & R:  Children’s Wishes [2002] FamCA 43
Makita & Sprowles (2001) 52 NSWLR 705
MRR & GR [2010] HCA 4

Applicant: MS DANES

Respondent: MR KENNEDY

File Number: WOC 416 of 2007

Judgment of: Judge Harman

Hearing date: 17 February 2014

Delivered at: Parramatta

Delivered on: 19 March 2014

REPRESENTATION

Counsel for the Applicant: Ms Smithies

Solicitors for the Applicant: Legal Aid Office ACT

Counsel for the Respondent: Self represented

ORDERS

1. All prior parenting orders with respect to the child [Z] born [in] 2005 shall be and are hereby discharged.

2. [Z]’s parents Ms Danes and Mr Kennedy shall have equal shared parental responsibility for [Z].

3. [Z] shall live with his mother Ms Danes.

4. [Z] shall spend time with his father:

   (a)Each alternate weekend during school terms (to occur as agreed between the parents or failing agreement to commence on the first weekend of each NSW school term) from 4.30pm-5.00pm Friday (or such later time as the parents shall agree) until 4.30pm-5.00pm Sunday;

   (b)For the first half of each short NSW school holiday (being those following the conclusion of Terms 1, 2 and 3) and from 12.00noon on the first Saturday of each such holiday period until 12.00noon on the middle Sunday of the holiday period;

   (c)For a period of three weeks in each Christmas school holiday period commencing 12.00noon Boxing Day and concluding 12.00noon 15 January following (or such other period as may be agreed between the parents from time to time);

   (d)Each Father’s Day weekend from 4.30pm-5.00pm Friday until 4.30pm-5.00pm Sunday (and provided that if Mother’s Day should fall on any weekend when [Z] would, pursuant to these orders, be scheduled to spend time with his father the time shall, for the Mother’s Day weekend be suspended);

   (e)Such further and/or other periods as agreed between the parents from time to time;

5. That for the purpose of [Z] passing into the care of the father that the parties shall meet (absent agreement to the contrary) at the [W] shops at the commencement of each period of time.

6. For the purpose of [Z] returning to the care of his mother at the conclusion of any period that [Z] has spent with his father the parties shall meet (absent any agreement to the contrary) at McDonald’s [T] at the conclusion of each period.

7. Each parent shall be entitled to telephone and speak with [Z] each Wednesday and Sunday that he is not or has not been in their care and with respect to same:

   (a)The parent seeking to speak with [Z] shall instigate the telephone call between 5.30pm and 6.30pm;

   (b)Each parent shall keep the other advised at all times of a contact telephone number upon which [Z] can be contacted (and upon which each parent can advise the other by text of any difficulties, issues or anticipated times of arrival regarding changeovers);

   (c)Each parent shall ensure that the telephone number advised to the other parent for telephone communication is switched on, charged and in a mobile service area at the times when calls are anticipated;

   (d)[Z] shall be allowed by each parent to speak with the other with privacy and without interruption or distraction.

8. Ms Danes shall be and is hereby (and without the consent of Mr Kennedy) authorised, allowed and permitted to:

   (a)Change [Z]’s place of residence to an address no further north than [R], NSW and to do so no earlier than the conclusion of Term 1 2014; and,

   (b)Upon such change of residence to then change the school attended by [Z] and so as to enrol [Z] at a school of her choosing proximate to her place of residence and subject to the following orders.

9. Each parent shall forthwith and to the extent that they have not already done so do all things necessary, sign all documents and give all consents, authorities and instructions as are required to forthwith cause the details of Mr Kennedy to be included and incorporated within any registration of the birth of [Z] and included upon any birth certificate then issued as [Z]’s father.

10. Each of the parties shall forthwith do all things, sign all documents and give all consents, authorities and instructions necessary to cause the details of each parent to be included within any present or future school enrolment application or school record for [Z] as both a parent and emergency contact person and to otherwise allow, authorise and permit each parent to obtain from [Z]’s school all information and reports (whether oral or written) as that parent may desire and to request same directly from the school.

11. Each parent shall forthwith and contemporaneous with the event advise the other parent of any significant illness, ailment, specialist appointment or hospitalisation relating to [Z] and including the provision of sufficient authority and instruction to ensure that each parent can be fully involved and consulted with respect to any treatment or diagnosis relating to [Z] and to visit him if hospitalised.

12. Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

13. That all outstanding applications and responses shall be dismissed and all issues removed from the list of cases awaiting hearing.

14. That all material produced on subpoena shall, at the expiration of the appeal period and absent any notice of appeal being filed, be returned to the person producing same or if it has been so requested, securely destroyed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

WOC 416 of 2007

MS DANES

Applicant

And

MR KENNEDY

Respondent

REASONS FOR JUDGMENT

1. These proceedings involve competing applications with respect to a child [Z] born [in] 2005.

2. The parties to the proceedings are [Z]’s parents namely his mother

   
   

   Ms Danes who is the Applicant in the proceedings and his father

   
   

   Mr Kennedy who is the Respondent.

History of proceedings

1. The proceedings in which the parties are presently involved were commenced by an Application filed by Ms Danes on 12 February 2013.  The Application was varied by an Amended Application filed on 19 December 2013 and further amended, without objection by

   
   

   Mr Kennedy, through a Minute of Orders filed at the commencement of trial (and incorporated within a Case Outline document produced by the mother’s Counsel).

2. A Response was filed by Mr Kennedy on 9 October 2013.  It is to be noted, unusually, that Mr Kennedy’s Response was filed after a Family Report had been ordered and released to the parties.

3. The relief which each party proposes is not significantly different.  However, it is clear and apparent that the significant issue which arises in the proceedings relates to the place at which or the general geographical location in which [Z] will live with his mother (there being no issue or dispute in the proceedings that [Z] will and will continue to live with his mother).  This is so notwithstanding that during the family report interviews Mr Kennedy had alluded to a desire to have the child live with him and Mr Kennedy having suggested to the report writer that [Z], in fact, held and had expressed to him a desire to do so.

4. Prior to the commencement of these proceedings the parties had been involved in a previous round of litigation. That litigation had been commenced by an Application Initiating proceedings filed by

   
   

   Mr Kennedy on 11 April 2007 (in the Wollongong Registry of the then Federal Magistrates Court of Australia).  A Response was filed promptly by Ms Danes (4 May 2007).

5. The proceedings in which the parties had previously been engaged were concluded by Final Orders made by consent on 4 March 2008 (being Orders made in accordance with terms of settlement apparently executed by the parties on 12 December 2007).

6. Prior to the making of Final Orders, Interim Orders had been made in the above proceedings on 3 May 2007 those Orders having also been made by consent.

7. The Orders made between the parties in the concluded 2007/2008 proceedings had some particular relevance as:

   a)They are the Orders which, by and large, continue to prescribe arrangements for [Z]’s time with each parent; and

   b)The making of Orders by consent on each of 3 May 2007 and 4 March 2008 sits uncomfortably with certain aspects of Mr Kennedy’s evidence in these proceedings (to which I will turn shortly).

Material read and considered

1. In addition to the record of Court events contained upon the Court file I have read and considered each of the documents identified by the parties and comprising:

In the case of Ms Danes, the Applicant:

a)The Amended Application filed on 19 December 2013;

b)An Affidavit of Ms Danes sworn or affirmed on 11 February 2013 filed on 12 February 2013.

c)An Affidavit of Ms Danes sworn or affirmed on 6 November 2013 and filed the same date;

d)The Case Outline document (incorporating a Minute of Orders) referred to above and filed in Court at trial.

In the case of Mr Kennedy, the Respondent:

1. I have read and considered each of the following:

   a)The Response filed by Mr Kennedy on 9 October 2013;

   b)The Affidavit of Mr Kennedy sworn or affirmed on 2 April 2013 filed on 9 October 2013.

2. In addition to the above I have read and considered a Family Report prepared in these proceedings by Family Consultant D and being a Report dated 29 August 2013 (released to the parties by order made the same day).

3. A number of documents have also been tendered in the case of

   
   

   Ms Danes comprising:

   Exhibit M1:  A Google maps print out with respect to travel from [R] to [T];

   Exhibit M2:  A Google maps print out with respect to travel from [D] to [T];

   Exhibit M3:  A Google maps print out with respect to travel from [R] to [W];

   Exhibit M4:  A Google maps print out with respect to travel from [D] to [W];

   Exhibit M5:  A record of antecedence with respect to Mr Kennedy;

   Exhibit M6:  Police statement of facts with respect to convictions recorded against Mr Kennedy, September 2005 (suggested to arise at or about the separation of the parties).

4. It is to be noted that the hearing date allocated to these proceedings had been fixed by an Order of the Court on 21 October 2013.  The relevant Orders with respect to preparation for hearing comprised:

   3.THAT this matter be listed for final hearing on 17 February 2014 at 10.00am.

   4.THAT evidence in chief at the hearing is to be by way of affidavit and oral evidence in chief will only be permitted by leave.

   5.THAT the applicant file and serve any affidavits upon which they intend to rely by close of business on 20 January 2014.

   6.THAT the respondent file and serve any affidavits upon which they intend to rely by close of business on 3 February 2014.

   7.THAT the applicant file and serve any affidavits in reply by close of business on 10 February 2014.

5. Neither party filed any affidavit material after the above Orders were made.  Each sought leave to rely upon the material which had been filed by them previously.  Prior to the hearing commencing it was thus necessary to canvas with each whether they considered that any disadvantage would flow to them as a consequence of same and, particularly in the case of Ms Danes, whether any prejudice would flow through brief oral evidence being led updating circumstances.

6. On the basis of the assurance by each party that they were in a position to meet the case of the other and did not object to reliance upon material earlier filed the matter thus proceeded on the basis of those documents being read and considered.

Chronology

1. The relevant chronology of events with respect to arrangements for the parties is far from complicated and, to the extent that there is little if any controversy with respect thereto the following is set out:

[omitted] 1982	Ms Danes is born (she is thus 31 years of age at hearing)
[omitted] 1984	Mr Kennedy is born (he is, accordingly, 29 years of age at hearing)
1997-2000	Mother in a relationship with Mr C (from which relationship two children were born).
[omitted] 1999	Child [X] born to the relationship between Ms Danes and Mr C.
[omitted] 2000	Child [Y] born to the relationship between Ms Danes and Mr C.
2002	Mother serves a period of imprisonment following a conviction with respect to automobile theft.  During this period and whether with the involvement of the Department of Family and Community Services or otherwise [X] and [Y] passed to live in the care of Mr C and his mother and continued to reside with him until the latter part of 2013 when the eldest of the children commenced to reside with Ms Danes.
June/July 2004	These parties commenced a relationship.  It would appear, from the evidence of each of the parties that they did not reside under the one roof.  Nothing of significance turns upon that circumstance.
[omitted] 2005	Subject child of these proceedings [Z] born to the relationship between Ms Danes and Mr Kennedy.
June 2005	The mother alleges separation between the parties.  The mother’s allegation of separation corresponds with an assault by the father upon the mother which occurred on 19 June 2005 (see Exhibit M6).  The father alleges that the parties reconciled following this event and that final separation between them then occurred in January 2006.
The suggested date of separation between the parties has some relevance in that Ms Danes suggests that following separation June 2005 and in November 2005 that she relocated from Wollongong (where the parties were both then residing) to [M] (near [G]).
November 2005	Mother suggests her relocation from Wollongong to [M] following which the father, whilst on the mother’s allegation aware of the mother’s place of residence and contact details, did not contact her.
March 2006	Mother suggests she and [Z] relocated from her mother’s home at [M] to rental accommodation at [G].
May 2006	Parties participate in family dispute resolution auspice by Legal Aid NSW.  The parties are at one that they agreed on parenting arrangements and executed a document headed “Short Minute of Consent Orders” which was signed and dated by them.  That document was never lodged with a Court for the purpose of Orders being made although the document would (although pre-dating the June 2006 amendments to the Family Law Act1975) represent a parenting plan between them.  That agreement, under which the parties then commenced to operate, provided for [Z] to spend time with the father each alternate weekend (initially 9.00am on Saturday until 5.00pm on Sunday and increasing to 5.00pm on Friday to 5.00pm on Sunday) together with other periods and with changeovers to occur at [G].
April 2007	Proceedings are commenced by Mr Kennedy in the Federal Magistrates Court, Wollongong.
3.5.2007	Interim Orders are made by consent providing for the father’s time with [Z] each alternate weekend from 10.00am Saturday until 10.00am Monday together with a period from 4.00pm Thursday to 4.00pm Sunday in each intervening week.
4.3.2008	Final parenting Orders made providing for the parties to have equal shared parental responsibility, [Z] to live with the mother and for [Z] to spend time with the father each alternate weekend from 4.00pm Thursday until 6.00pm Sunday (and other periods).
2008	Father commences a relationship with his current partner Ms G.
2010	The mother relocates with [Z] to Canberra.  There is controversy between the parents as to whether such relocation was by consent and/or made known to Mr Kennedy prior to its occurrence.  Consequent upon the mother’s move to Canberra [Z]’s time with his father reduces to each alternate weekend from Friday until Sunday (with changeovers occurring, by and large, in [G]).
[omitted] 2012	Child [name omitted] born to Mr Kennedy and his partner Ms G.
December 2012	Mother commences to spend time with [X] and [Y] (her children from a prior relationship) on the third weekend of each month.  The mother is required to travel from Canberra to [C] by car to facilitate this time with [Z] travelling with her.
12.2.2013	The mother commences these proceedings.
7.11.2013	Mother’s eldest child [X] commences to live with her.
[omitted] 2013	Mother gives birth to a child [A], the child of the relationship between the mother and a Mr P.
17.2.2014	Hearing of these proceedings.

The parties’ proposals

1. Within the context of the parties’ proposals it is important to remember that the arrangements presently relating to [Z]’s relationship with each party are substantially reflected by the Orders made by consent on 4 March 2008 and as otherwise varied by agreement between the parties following the mother and [Z] relocating to Canberra. Thus arrangements presently are:

   a)That the parties have equal shared parental responsibility for [Z];

   b)That [Z] lives with his mother;

   c)That Mr Kennedy spends time with [Z] each alternate weekend from Friday to Sunday together with one half of each NSW school holiday period.

2. The mother’s proposal does not seek to effect any substantial or significant variation to the above arrangement save and except that the mother seeks to relocate with [Z] from Canberra to [R] (or a point in or about the Newcastle area no further north than [R]) and, consequent upon such move, to vary the changeover arrangements so that changeovers occur at a midway point/points in the Sydney metropolitan area.

3. Mr Kennedy, for his part and by his Response also does not seek any substantial variation of the existing arrangements. Indeed the amendments to the existing Orders that are sought by Mr Kennedy (4 March 2008) are minimal and modest and are, by and large, designed to reflect:

   a)A slight reduction in alternate weekend time (the Order provides time to commence at 4.00pm on Thursday and Mr Kennedy seeks that time commence, as is presently occurring, at 4.30pm Friday);

   b)Further definition of school holiday time (but still occurring for one half of each school holiday period); and

   c)Changeovers to occur at KFC [M] which is suggested to be more approximate to a midway point between the parties (with the mother living in Canberra) than [G];

4. The significant issue for determination at trial is thus whether

   
   

   Ms Danes is permitted to relocate with [Z] to the [R] area and consequent upon that move to effect a change in his school enrolment and attendance.

The Family Report

1. The Family Report produced in these proceedings does not contain any specific recommendation as to future arrangements for [Z].  However, that is entirely appropriate.

2. It is to be remembered that it is not the role of the Family Report writer to act as a tribunal of fact nor to seek to “determine” the outcome of proceedings. It is common practise for Family Reports, when it is considered safe to do so, to advance clear recommendations as to future care arrangements. However, it is entirely permissible and appropriate that reports, rather than advancing a specific position, canvas the relative strengths and weaknesses, from the perspective of the child’s best interests, of competing proposals.

1. The above is particularly so in a case such as this where the parties are, but for the place at which Ms Danes will reside with [Z], largely in agreement as to future care arrangements.

2. The parties had, for the purpose of Family Report interviews, caused a number of persons other than themselves to attend and be interviewed.  Ms Danes caused her mother Ms B to attend and the interview between her and Ms D is set out at paragraphs 33 to 37 of the Report.  Ms B has not been called as a witness in the proceedings and, accordingly, I do not propose to have any regard whatsoever to that contained within the above paragraphs or arising from her interview.

3. It is not clear or apparent from the report that Ms D has placed any reliance upon any material raised by Ms B in her interview. This is, perhaps, advantageous as any reliance upon that material, in the event of issue or dispute, would give rise to significant Makita & Sprowles (2001) 52 NSWLR 705 issues.

4. Similarly Mr Kennedy caused his father Mr K to attend at Family Report interviews (and indeed Mr K Senior attended with Mr Kennedy Junior throughout the hearing and presumed his entitlement to sit at the bar table with his son and to render “assistance” to him in the nature of a Mackenzie Friend).  I will touch upon that briefly.

5. Mr Kennedy’s interview is set out at paragraphs 48 to 51 of Ms D’s Report. Again, Ms D would not appear to have placed any weight upon or had any regard to that raised by Mr Kennedy during the Report interviews save and except the assertion by Mr Kennedy (adopted by each of the parties) that communication between the parties was “caustic” (see paragraph 49).  Beyond that observation, which I can safely rely upon as it is adopted as factual by the parties and each of them).  I do not propose to have regard to or place any weight or reliance upon that related as to the interview with Mr K Sr.

6. It is to be noted that whilst each of the parties chose to bring to the Report interviews one of their parents neither sought to present at interview their fulltime residential partner namely Mr P and Ms G respectively.

7. Within the portion of the Family Report detailing the interview between Ms D and each of the parties nothing of great significance arises and certainly nothing inconsistent with the evidence lead by that party in their own case.

8. Ms D was cross-examined briefly although her evidence was not, in any way, shaken or seriously challenged.

9. [Z] was also interviewed by Ms D and that which was gleaned from such interview is set out at paragraphs 52 to 57 of the Report.  No one has challenged anything reported with respect to [Z] and which suggests and establishes:

   a)

   [Z], whilst he has not had any significant involvement with

   
   

   Ms Danes’ children of her prior relationship, would appear to enjoy a reasonable relationship at least with his eldest sister [X].  [Z] is quoted, in commenting upon his sisters (who then both lived in [C]) as follows “they are nice”.  It is made clear also that [Z] “is not keen on the long journey to visit his sisters” (paragraph 52);

   b)[Z] enjoys his relationship with his father but comments “he [his father Mr Kennedy] always yells at me”…  [Z] admitted it was good except when his father “yelled”.  And “good sometimes” (paragraphs 53 and 54 respectively);

   c)[Z] enjoys a good relationship with his siblings and stepsiblings at the home of his father (Mr Kennedy’s partner Ms G having three children from a prior relationship aged 12/13, 9/10 and 7/8);

   d)“[Z] is close to his mother who is “the person he can count on”.  He misses Mr P who he appears to have a positive relationship with.  His message to the judge was “just to move”” (paragraph 57).

10. Under the heading “Evaluation” (paragraphs 58-65) Ms D opines:

    a)“Mr Kennedy presented as angry and frustrated at Ms Danes’ wish to move” (paragraph 58);

    b)A number of pros and cons arise from Ms Danes relocating to [R] and that, as enumerated by Ms D, the pros would appear to outweigh the cons;

    c)It would be apparent in the event that Ms Danes did not relocate with [Z] that the last observed “con” that “[[Z]] will have more time with his father when he visits him” would appear somewhat overstated if not inaccurate;

    d)“Ms Danes has in the past facilitated [Z]’s relationship with his father and appears to wish to continue to do so” (paragraph 64) and which evidence I accept;

    e)“Mr Kennedy and Ms Danes have a “caustic” relationship as described by Mr Kennedy’s father.  Distance between them is unlikely to change the relationship” (paragraph 65).  Again I accept this evidence from my own observations of the parties and a consideration of their evidence.

11. The recommendation contained within the report is set out within the final paragraph (paragraph 66) in the following terms:

    a)“[Z] identifies with his mother, as he has spent his life mainly with her.  If the relocation is not permitted, the mother’s emotional disappointment is likely to impact on her parenting of [Z] and his sense of wellbeing”.

12. As indicated above Ms D was not, during her brief cross-examination, dissuaded from any of the comments, statements or opinions offered in the report.

The parties’ evidence and credit

1. Ms Danes gave her evidence frankly and candidly.

2. Mr Kennedy was somewhat hampered in his cross-examination of

   
   

   Ms Danes through self-representation.

3. Mr Kennedy, whilst having the “assistance” of his father was not well served by same.

4. It is relatively common in this day and age for self-represented parties to seek to have assistance from a family member, associate or possibly support worker when they appear on a self-represented basis.  The Court is generally open to affording some latitude to such parties noting that self-representation in such proceedings, whilst regrettably common place and increasingly so, is stressful, confronting and presents by and of itself a significant impediment to due process. 

5. It can be difficult for a self-represented party to approach a matter dispassionately or objectively and it is inherently difficult for them, whilst conducting their own case, to simultaneously be a witness, advocate and, as it were, their own “client”.

6. The guidelines for Mackenzie Friend representation are well established by the Full Courts of the Family Court, Federal Court and by the High Court and State Supreme Courts. I do not propose to canvas them in any detail.  That is particularly so as it had not been my desire or intent, in allowing Mr Kennedy Jr to have the “assistance” of his father Mr K Sr to facilitate such representation.

7. Mr Kennedy Jr was clearly under no “disability” save nervousness and inexperience.  They are not, by themselves, criteria to allow a person who is not a legal practitioner to represent the interests of a person in the conduct of litigation.

8. When the matter was first called and Mr Kennedy Jr took the bar table with Mr K Sr and Mr K Sr began to speak referring, in the plural, to himself and his son as “we” some little time was taken to specifically outline the basis upon which Mr K Sr would be permitted to remain at the bar table with his son and to provide him with comfort and support as well as some assistance in collating materials and taking notes. 

9. During the course of the matter and in particular whilst Mr Kennedy was in the witness box and under cross-examination, Mr K Sr intervened, without the Court’s leave and without seeking same, rising and handing a note to his son. More strident intervention became necessary.  Thereafter Mr K Sr was precluded from any engagement within the process although he continued to interject and raise matters until warned in clear and certain terms that any repetition of such behaviour would result in his exclusion from the Court room.  Thereafter Mr K Sr, by and large, devolved to a role of support and assistance to his son without such intervention.

10. For all of the above Mr Kennedy was not greatly assisted particularly in cross-examination of Ms Danes which largely did not focus upon issues of substance or significance in the proceedings and thus did not make any significant impact upon Ms Danes’ evidence or her credit.

11. I accept Ms Danes as a witness of truth and candour.

12. Mr Kennedy during his cross-examination was particularly challenged regarding his behaviours towards Ms Danes both historically and to the current day, as might impact upon communication between the parties.  It was apparent therefrom that:

    a)Mr Kennedy had declined to participate in family dispute resolution and thus these proceedings were commenced on the basis of a section 60I certificate issued by a family dispute resolution practitioner affirming the absence of family dispute resolution and on that basis;

    b)Mr Kennedy was clear in his evidence that he had little, if anything, positive to offer as regards Ms Danes as a person or parent;

    c)

    Mr Kennedy was, at best, defensive if not evasive as regards issues of past violence in the relationship between himself and

    
    

    Ms Danes; and

    d)Mr Kennedy’s evidence demonstrated a level of self-justification, self-focus and denial/deferral regarding any difficulties arising with respect to his relationship with [Z] or the time that he spends with him.  This was particularly stark as regards issues in relation to Mr Kennedy’s engagement with [Z]’s education and academic performance wherein it was conceded that Mr Kennedy had not attended any school event and, when questioned as to whether he had attended any speech night responded “what’s a speech night?”.

13. Whilst there was some potential justification to Mr Kennedy’s position in asserting that there are practical difficulties in attending such events it would appear clear that no effort has ever been made to attend same.  Whilst I certainly accept that Mr Kennedy is engaged in fulltime employment and needs to be so engaged to be able to support his family (with Ms G and with [Z] through payment of child support) the inability of Mr Kennedy to point to any step that he has taken to engage himself in those processes other than, in the last two years, to make contact with [Z]’s school and obtain school reports, does him little credit.

14. Overall I was not impressed with the candour of Mr Kennedy’s evidence and thus am less satisfied as to the credit worthiness or reliability of same.

15. As a consequence of the above and wherever issue arises as between the evidence of Ms Danes and Mr Kennedy I prefer and accept the evidence of Ms Danes.

Separation of the parties

1. A significant issue arises in these proceedings (although sadly not addressed in any detail in Ms Danes’ evidence), regarding the circumstances at separation.

2. As would be apparent from the above and to the extent that there is dispute between the parties as to factual issues, I accept the evidence of Ms Danes.  Thus, I accept the separation of the parties, on a final basis, occurred in June 2005 and following the incidents which had been the subject of Police intervention.

3. The record of antecedence of Mr Kennedy (Exhibit M5) makes it clear that as a consequence of events which occurred on 19 June 2005 that Mr Kennedy was charged and ultimately convicted (on a plea of guilty) of assault occasioning actual bodily harm, common assault and intimidating a Police Officer in the execution of their duty (being a female Police Officer).  It would also appear that at the time of these events that Mr Kennedy was intoxicated (as would appear to have created difficulty for Mr Kennedy in coming to the attention of the Police on 31 December 2005 and 1 May 2009 being, on each occasion, offenses of drive with middle range PCA).

4. Mr Kennedy ultimately conceded that he had pleaded guilty to the offences as offered by the Police with respect to that event and, as a consequence, had received a section 9 Bond (with conviction recorded). Clearly, as a consequence of the mid-range PCA 31 December 2005, Mr Kennedy was called upon to be resentenced with respect to the assault charges (relating to assaults upon Ms Danes) and thus received an additional sentence with respect thereto.

5. The circumstances to which a plea of guilty was entered by

   
   

   Mr Kennedy are set out in Exhibit M6.  The events described on that occasion are particularly concerning. It is suggested that Ms Danes and Mr Kennedy had been out together and had returned home from a friend’s with Mr Kennedy being “well intoxicated”.  An argument ensued during which Mr Kennedy punched and kicked Ms Danes.

   
   

   Ms Danes left and [Z] (then only some months of age) remained at the home with Mr Kennedy. Ms Danes telephoned the Police from the home of a friend.

6. Upon Police attending Ms Danes was observed to have bruises to her face and arms and her left leg.

7. The Police then attended at the home in which Mr Kennedy remained.  As the Police were approaching the home Mr Kennedy could be heard screaming and as the Police drew nearer Mr Kennedy was observed sitting on a bed in the lounge room of the home holding [Z] and yelling into his mobile phone including “I fucken hate you, you are a slut.  You are a fucken dog”.  Mr Kennedy would appear to have been speaking on the telephone with Ms Danes.

8. When the Police knocked on the door and identified themselves

   
   

   Mr Kennedy replied “Fuck off, go and get a warrant you slut [to the female police officer].” and when asked to put [Z] down and come to the door responded to the same female Police Officer “Fuck off cunt, come in here and get me, you think your so fucken good”.

9. A stand-off then ensued between the Police and Mr Kennedy which lasted some fifteen minutes during which Mr Kennedy is suggested to have been holding [Z] “roughly in his hands with the childs head falling back numerous times” as well as telephoning Ms Danes and screaming at her on the telephone “You fucken slut, come home, you’re a cunt.  You little cunt, I’m going to hunt you down and fucken kill you”.

10. It is to be remembered that Ms Danes had given evidence during her cross-examination by Mr Kennedy, that she had left the Wollongong area and moved to her mother’s home at [M] and thence [G] as a consequence of threats by Mr Kennedy that he and/or members of his family would cause her harm and “bash her”.

11. Ultimately something of a “siege” developed with more Police attending and the home being surrounded.  Whilst the Police were outside of the home they could again hear Mr Kennedy screaming into the phone, to Ms Danes “Fuck you bitch, I’ll kill you and I’m going to kill the baby, did you hear me, I am going to kill the baby, the house is surrounded by Cops!”.  The Police then forced entry to the home due to concerns for the child’s welfare having overheard these comments.  At this time and when confronted by the Police Mr Kennedy is suggested to have held the child in front of him as a shield and refused to let the child go even when Police were trying to physically remove the child.  As a consequence Mr Kennedy, [Z] and Police have fallen onto the bed and the child was then eventually taken from

    
    

    Mr Kennedy.  In response to this and whilst being removed from the home it is suggested that Mr Kennedy had then indicated at the Police Officers “I’m gunna get you when I’m back out on the street, one on one, I’ll get you without your mates”.

12. When confronted with this statement, the very statement to which

    
    

    Mr Kennedy had entered a plea of guilty, Mr Kennedy indicated that the statement was “exaggerated” and that he had only entered a plea of guilty on the basis of legal advice that he would not be able to defend the charges and that penalty might be more severe if he attempted to do so without success.

13. Clearly at and about the time of separation (and for some little time following it) Mr Kennedy had a difficulty with alcohol as demonstrated by the events as set out in Exhibit M6 and the two subsequent convictions, within a relatively short time, for mid-range PCA. On that basis and having regard to Mr Kennedy’s demeanour in the proceedings generally (even making allowance for his being self-represented, frustrated and over borne with responsibility for conducting his own proceedings) I am not satisfied that Mr Kennedy’s version of events can or should be preferred over and above those of Ms Danes and/or as reflected in the police entry Exhibit M6.

14. Whilst the specifics of that entry is not able to be tested by

    
    

    Mr Kennedy (the author of the document or the various portions thereof are not available for cross-examination) I am satisfied, by reference to section 79 of the Evidence Act 1995, that I can and should accept the contents of the document as, in all probability, accurate and preferred to the version of events offered by Mr Kennedy (clearly intoxicated at the time of the events).  (See for example Roach v Page (15) [2003] NSWSC 939 and Roach v Page (no 27) [2003] NSWSC 1046).

15. The above material is of some particular relevance noting:

    a)The factual dispute between the parties as to whether family violence had occurred during the relationship.  Ms Danes asserts that the relationship had been significantly permeated by family violence an allegation denied in its totality by Mr Kennedy.  I accept that family violence occurred; and

    b)The centrality of family violence as an issue of significance in the determination of parenting disputes.

The practical implications of Ms Danes’ suggested relocation

1. In Ms Danes’ case a number of Google maps were tendered (see Exhibits M1 to M4).

2. As was made clear to Counsel for Ms Danes the acceptance of such tender was to allow some illustrative example of suggested routes and travel times rather than accepting those documents, by reference to section 69 of the Evidence Act, as proof of that suggested by them particularly as regards travel times for the routes offered.  This is particularly so noting the cautions and caveats offered by such searches as to their reliance upon an optimal or average travel time in making suggestions as to the likely time of travel required to traverse the route or trade.

3. By reference to Ms Danes’ evidence it is clearly her case that the amount of travel in total (both as to kilometres travelled and time taken to travel said routes) will not increase or significantly increase as a consequence of her relocation from Canberra to [R] if permitted.  Exhibits M1 to M4 would provide, on the basis of the available cautions and reservations, some corroboration for that part of

   
   

   Ms Danes’ evidence.

4. Mr Kennedy asserts in his case that travel will be significantly increased.

5. Ms Danes also asserts, significantly in the context of her evidence, that a move to [R] will bring a number of significant reductions in other travel undertaken by [Z].  It is to be remembered that Ms Danes’ eldest child [X] has recently commenced to reside with her.  That child is the subject of proceedings between Ms Danes and her former partner ([X] and [Y]’s father) before the [C] circuit of the Federal Circuit Court.  As best as can be ascertained from Ms Danes’ evidence a further mention date will arise in those proceedings in April 2014.

6. Ms Danes’ evidence is that she is now and has since December 2012 been required to travel to [C] one weekend per month for the purpose of spending time with her eldest children [X] and [Y] (now [Y] only).  On this basis (and accepting Ms Danes’ evidence on the point) her travel is 11-12 hours and possibly as many as 17-18 hours each way.  The travel time has increased recently and as a consequence of the birth of Ms Danes’ youngest child [A].

7. As a consequence of Ms Danes having no other means of arranging for [Z]’s care whilst she is travelling to and from [C] (or [Z]’s care and delivery to and collection from Mr Kennedy if a weekend that [Z] is to spend with his father corresponds with such a weekend) [Z] has been travelling with Ms Danes to and from [C] and thus missing the Friday and Monday of school on either side of the weekend.  It is at least partially on this basis, I accept, that [Z] is suggested to have missed sixteen days of school in the last two terms of 2013 (as was put to

   
   

   Ms Danes during her cross-examination).

1. Ms Danes’ evidence, with respect to her travel arrangements between both [R] and Sydney (for the purpose of any changeover of [Z] between she and Mr Kennedy) and between [R] and a mid-point between [R] and [C] (for any changeover with [Y]) is thus highly relevant and somewhat compelling. Clearly the relocation to [R] would significantly reduce both the amount of travel that [Z] is required to undertake (being a similar if not equal amount of travel for the purpose of his relationship with his father Mr Kennedy) but importantly a vastly lesser amount of travel as regards his accompanying his mother for the purpose of collecting and returning [Y].

2. Mr Kennedy’s evidence on the point was, I am satisfied, somewhat focused on his rather than [Z]’s considerations in his availability and suggested absence of flexibility (or failure to consider flexibility) of same.  Throughout his evidence Mr Kennedy has been clear on the hours of work that he is required to perform being work Monday to Friday and for regular and certain hours each day.  Mr Kennedy did not suggest (nor in fairness to him was it canvassed with him during cross-examination) that he had considered, pursued or taken any step towards achieving flexibility in hours so that, for example, he might finish some hours early each alternate Friday (so as to be able to collect [Z] earlier or to engage with [Z] at or through his school) or to commence later each alternate Monday so as to be able to attend with [Z] at school.  Indeed what is stark from the evidence is that:

   a)The Family Report, following the interview with [Z], makes clear the delight [Z] had experienced on one occasion when his father had come to his school; and

   b)The Orders sought by Mr Kennedy in his Response whereby he seeks, by reference to his suggested hours of employment, to delay the pickup time for [Z] each alternate weekend (on a Friday rather than Thursday as the present orders provide).

3. On the basis of the evidence (again preferring that of Ms Danes over that of Mr Kennedy’s wherever there is conflict) I thus accept that:

   a)There is no practical or significant practical difference between the amount of travel (whether from the perspective of either parent or [Z]) dependent upon whether Ms Danes relocates with [Z] to [R] or remains resident in Canberra at least insofar as travel for the purpose of [Z] spending time with his father; and

   b)There would be a significant reduction in the burden of travel (and school absence as a consequence thereof) to which [Z] is exposed if Ms Danes were to relocate with [Z] to [R].  There are also a number of other benefits (as referred to in the report and as will be canvassed hereafter) in such relocation.

The balance of evidence

1. I do not propose to consider or canvas the balance of evidence in the proceedings to any significant extent.  However, the remaining evidence in the proceedings is scant and far from satisfactory (for the reasons set out above as regards preparation by the parties).  However it is the evidence that is available and I am satisfied that it is sufficient to allow a determination of the matter to be made that is in [Z]’s best interests.

2. To the extent that other aspects of the evidence are of relevance or significance to the determination to be made by me and particularly through an address of the legislative pathway I will refer to specific aspects of the evidence though a discussion of such pathway.

Approach to relocation cases

1. I have previously had basis to consider the present state of Full Court and High Court authority regarding relocation cases.  Accordingly, I incorporate herein paragraphs 166 to 181 of Beaumond & Hardiman [2013] FCCA 1173 and as follows:

   1.   166.  The specific matters which relate to a relocation case, which in any event are otherwise parenting proceedings to be dealt with under Part VII, are addressed at some length by Kirby J in his decision in AMS & AIF. Specifically, his Honour commencing at paragraph 136 set out nine specific factors which one might consider, I incorporate paragraphs 136 to 149 of that decision herein and as follows:

   136. At least until the second half of the eighteenth century, a child born to unmarried parents, called "illegitimate", was regarded by the common law as filius nullius. Consequently such a child was under the legal guardianship of nobody. The applicable law was so strict that even until the end of the nineteenth century an illegitimate child was not regarded as being in the custody of anyone, even of its mother. However, in Barnardo v McHugh, the House of Lords recognised the mother's legal right to the custody of her illegitimate child. The change of direction in the law was the result of an inference drawn from the Poor Law Acts imposing statutory duties on the mother in relation to the maintenance of such a child.

   137. Before and after the enactment of FLA 1975 and FCA 1975, developments occurred in Australia to occasion further quite radical changes to the applicable law. The first was an alteration in community attitudes to the status of illegitimacy and the growth of the number of relationships between couples outside marriage to whom children are born. These developments led to many legislative changes. Relevant to the present appeals was the reference to the Federal Parliament by the Parliaments of all States except Western Australia of their legislative powers in respect of children. This led, in turn, to the amendment of FLA 1975 to cover all children in those affected jurisdictions: those born to married parents (nuptial) and those born to parents who were not married (ex-nuptial).

   138. The second development arose out of the significant increase in the number of divorces granted annually affecting large numbers of children. This fact occasioned inquiries aimed at reducing the "win/lose mentality in which parents may appear to be pitted against each other to the detriment of the children". Reports by the Family Law Council and by a Joint Select Committee of the Parliament proposed changes to FLA 1975, addressed to applicable nomenclature, principles and procedures. Many of these proposals were adopted by the Family Law Reform Act 1995 (Cth). Those reforms were not immediately copied in the Western Australian law. However, many of them were introduced into the law of that State by FCA 1997.

   139. The third development of relevance arises from the growing influence in recent years, including in this area of the law, of international law to which reference will later be made.

   140. Relocation cases have long presented special problems for judicial decisions concerning the custody of children. But a fourth development has added to the number, variety and urgency of decisions concerning the relocation of parents having custody of a child. Two particular features of Australian society may be noted. The first is that, overwhelmingly, women constitute the residence parent to whom, in the old nomenclature, "custody" is granted. Of single parent families, the mother is reportedly the residence parent in approximately 84% of cases. Accordingly, in practical terms, court orders restraining movement of a custodial (or residence) parent ordinarily exert inhibitions on the freedom of movement of women, not men. Another feature of the Australian scene, not necessarily reflected to the same degree in other jurisdictions, is the very large proportion of the population born overseas, with family links to which a party to a marriage or relationship which has broken down may return with their child.

   Relocation of a child's residence - general principles

   141. This Court comes to the consideration of the arguments in these appeals with the benefit of at least thirty years of consideration of like problems by appellate courts in Australia and other common law jurisdictions. I derive the following general propositions from the authorities.

   142. First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a "careful and delicate analysis", which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach.

   143. Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child's place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the "welfare" (or "best interests") of the child should be the paramount consideration. It may provide a list of considerations or "principles" to be applied in the exercise of the court's powers. However, the "paramount" consideration is not the same as the "sole" or "only" consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.

   144. Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.

   145. Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.

   146. Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women's equality or the "feminisation of poverty" resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.

   147. Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But 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. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.

   148. Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child's access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.

   149. Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court's discretion

   2.   167.  The above principles were also discussed by his Honour in some detail in U & U. I have also been referred by Counsel for Ms Beaumond to an excellent discussion of the relevant principles (not only as espoused within U & U but Morgan & Miles (2007) FLC 93-343 and Palmer & Hamer (No 2) [2011] FamCAFC 196, Taylor & Barker (2007) 37 FAM LR 461 and MRR v GR (2010) 240 CLR 461 and various other authorities) by the decision of the Full Court in Sayer & Radcliffe and Anor [2012] FamCAFC 209. I thus incorporate herein from that discussion portions thereof which more than abundantly sets out those principles, being paragraphs 46 to 51 thereof together with that incorporated and expressed with approval within that judgement from Starr & Duggan [2009] FamCAFC 115 and under the heading: “Approach to Applications involving a Relocation of the Child” (paragraphs 33 to 39 thereof):

   33. The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA.  That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.

   34. The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.

   35. In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent. 

   36. The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters.  This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.  Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).   

   37. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.

   38. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

   ·first make findings concerning the relevant s 60CC factors;

   ·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and

   ·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.

   39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.

   3.   Relevant Principles

   4.   168.  While it is apparent that the mother’s primary complaint in the appeal is the Federal Magistrate’s denial of permission to relocate to South East Queensland, it is important to recall that the application before her Honour was that of the father for parenting orders. The consideration of relocation arose later, in the mother’s response to the father’s application, as an order sought by her, and then more urgently when the mother had in fact moved to South East Queensland with the children.

   5.   169.  It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan & Miles (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).

   6.   170.  A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan & Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.

   7.   171.  The provisions of the Act which form that legislative pathway have been reproduced at length by this Court many times (Taylor v Barker (2007) 37 Fam LR 461, Morgan & Miles (supra), Adams & Randall (2011) FLC 93-482). It is sufficient for current purposes to identify and summarise those sections contained in Part VII of the Act which govern decisions about children, and consider statements of the High Court and of this Court which guide their application in the context of relocation cases:

   ·Section 60B – Objects of Part and principles underlying it

   ·Section 60CA – Child’s best interests paramount consideration in making a parenting order

   ·Section 60CC – How a court determines what is in a child’s best interests

   ·Considerations relevant to relocation include:

   oPrimary considerations: meaningful relationship with both parents

   ·Additional considerations:

   oNature of child’s relationship with parents and other persons

   oExtent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate

   oLikely effect of changes in child’s circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living

   oPractical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child’s right to maintain personal relations with both parents on a regular basis

   oCapacity of each parent and any other person to provide for the needs of the child

   ·Section 61DA – Presumption of equal shared parental responsibility when making parenting orders

   ·Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable)

   ·Subsection 65DAA (5) – Factors the Court must have regard to in determining reasonable practicability:

   oHow far apart parents live

   oParents’ current and future capacity to implement an arrangement for equal or substantial and significant time

   oParents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements

   oImpact arrangements would have on the child

   oSuch other matters the Court considers relevant.

   8.   172.  The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.

   9.   173.  The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR [2010] HCA 4 (3 March 2010), an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said:

   6. Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.

   7. Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. […] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.

   8. Sub-section (1) of s 65DAA is headed “Equal time” and provides:

   “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”(Emphasis added.)

   Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”

   Sub-section (3) explains what is meant by the phrase “substantial and significant time”.

   9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”,“[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.

   …

   15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

   10.    Approach to Applications Involving Relocation of A Child

   11.    174.  The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramouncy principle” found in s.60CA.  That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.

   12.    175.  The interplay between the paramouncy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.

   13.    176.  In McCall & Clarke the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent. 

   14.    177.  The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters.  This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.  Some of the matters to be considered under s.60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s.65DAA, especially s.65DAA(5).   

   15. 178. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.

   16.    179.  However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

   a)first make findings concerning the relevant s 60CC factors;

   b)then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and

   c)then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s. 65DAA(5) – which may be done by referring back to the earlier s. 60CC findings.

   17.    180.  Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.

   18.    181.  What is made clear by that discussion and the cases addressed therein is that the legislative pathway must be followed and with a specific focus upon considering each of the proposals that arise. 

1. I must commence with a consideration of the objects and principles in section 60B of the Family Law Act 1975.

2. I am reminded by section 60CA that the child best interests are paramount at all times.

3. I must address the presumption of equal shared parental responsibility in section 61DA and determine if it applies.

4. I must then consider equal and substantial and significant time before considering other time arrangements as set out in section 65DAA.

5. Specifically, however, one is reminded and enjoined by the High Court’s decision in MRR & GR [2010] HCA 4 that:

   19.    Section 65DAA(1) is expressed in imperative terms that obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents and the question whether it is reasonably practicable that the child spend equal time with each of them.  It is only where both questions are answered in the affirmative that consideration may be given to the making of the order being an order for equal, substantial and significant time.  The determination is a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind.  It is a matter upon which a power is conditioned much as it were a jurisdictional fact must be proved to exist.

6. What is also made clear by their Honours is that the Court does not commence from the position of determining that equal time would be desirable or perhaps, in the terminology of such cases, optimal and thus seeking to make it occur.  It is a matter of considering practical reality.

7. In the context of this relocation case I must consider each of the relevant proposals, their respective advantages and disadvantages and, thus, select the proposal which best advances (accepting that there may be detriments arising from each of the proposals) the child’s best interests.

8. Having considered such matters the factors which the Court must then view are set out in section 60CC and incorporated therein through, section 60CC(3)(m), section 65DAA(5).

9. In dealing with those matters I now turn to the legislation.

Legislative pathway

1. The objects and principles in section 60B, which I incorporate herein, provide a philosophical framework which are designed to indicate to the Court the most desirable outcome subject to those outcomes meeting the child’s best interests. Those objects and principles are:

   Section 60B

   1. The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2. The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly 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; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. I am required to ensure that whatever Order is made by me will, as far as practicable, ensure that [Z] has the benefit of both of his parents having a meaningful involvement in his life to the maximum extent consistent with his best interests.

3. I am required to ensure that [Z] is protected from physical or psychological harm. Indeed, this is made abundantly clear by section 60CC(2A) (prioritising the primary considerations set out in subsection (2) and to which I will attend shortly).

4. In these proceedings neither party seeks to raise any issue regarding suggested risk to [Z] whether from physical or psychological harm or otherwise.

5. Whilst it is not raised by the parties there are a number of aspects of the evidence that at least infer that some further consideration of those matters might be warranted. However, in the absence of evidence it is not possible for these issues to be explored fully.  These particularly arise from comments reported of [Z] in the report of Ms D wherein [Z] suggests with respect to his father “He always yells at me.  Once I was standing there and he yelled” and “he maintained that it was “not good when Dad says ‘come over here’ and he hits me.  I say ‘stop hitting me’”.

6. These matters were not explored with Mr Kennedy during cross-examination and were denied by him in his evidence and offense to such suggestions raised by him in his submissions.

7. I am not satisfied that any unacceptable risk, within the ambit of the authorities such as Johnson & Page (2007) FLC 93-344, could be established on such scant evidence. Whilst it is concerning that such comments would be made by [Z] they have not been explored with

   
   

   Mr Kennedy and thus a significant Browne v. Dunn (1893) 6 R. 67, H.L. issue would arise in opposition to findings based upon that material.

8. I have considered whether the Court would be obliged pursuant to section 67ZBB, to adjourn the proceedings and require that further evidence be obtained to address such matters.  I am satisfied that such a course is not warranted particularly noting:

   a)Ms Danes has not sought to raise any evidence of such concerns (whether from her own observation or experience or from comments made by [Z] to her);

   b)Ms D has indicated that she did not pursue the matter further with [Z] and that [Z] did not appear distressed or concerned; and

   c)The evidential address of such matters is such as to cause me no sufficient concern to warrant such a course or, to the extent that some concern might arise, same must be balanced against the desirability of finality in the proceedings.  I conclude and am satisfied the desire for finality outweighs such concerns.

9. I am required to ensure that [Z] receives adequate and proper parenting. Again, I am satisfied that this is so and particularly as regards the primacy of parenting provided to [Z] by Ms Danes whom, whilst Mr Kennedy is reluctant to express any particular praise or positive comment of Ms Danes as a parent (describing, in response to the question “is she a good mother?”, “she does ok”) I am satisfied Ms Danes has, in somewhat onerous circumstances particularly as a consequence of the matters surrounding the separation of the parties as discussed above, performed her duties as a parent to an excellent standard.

10. I am then required to turn to section 61DA and determine whether the presumption of equal shared parental responsibility applies.

11. Neither party seeks to urge or agitate any Order other than equal shared parental responsibility. U & U (2002) 211 CLR 238 makes clear that the Court should afford due process to both parties if any other Orders are considered than those which the parties propose (it being noted that each parent proposes that an Order for equal shared parental responsibility, as is already provided by the Final Orders made in 2008, would be made and/or continue). I am satisfied that I can, with some safety, make an Order for equal shared parental responsibility as the parties urge.

12. The above is so notwithstanding that I am satisfied that the presumption of equal shared parental responsibility in section 61DA cannot and should not apply. Clearly, as discussed above (regarding the events at and immediately following the separation of these parties) family violence has occurred. In those circumstances and by reference to section 61DA(2) the presumption cannot apply. Lest I am wrong in that regard I note that it is also clear from the parties that they agree that their relationship with each other is “caustic” and that they are distrustful of the other and far from positive in the views that they hold of the other.

13. Communication between the parties occurs by text message and, as arises particularly from the cross-examination of Mr Kennedy, it is difficult to foresee any other means of communication that would be effective in the medium or long term. Notwithstanding those difficulties, however, clearly the parties are able to each participate in decision making should they wish to (albeit that it is unlikely that such decision making would be joint and consensual as section 65DAC envisages but rather by each having separate input into decision making or, at least, information obtaining).

14. As each of the parties urges that an Order for equal shared parental responsibility be made and as the parties have each clearly been able to adequately address arrangements between them (including with respect to information sharing and obtaining) I am satisfied that an Order for equal shared parental responsibility can be made and thus will be made. The application or non-application of the presumption does not dictate the order with respect to parental responsibility that is eventually found to be in a child’s best interests and reasonably practicable.

15. As I am not satisfied that the presumption for equal shared parental responsibility applies pursuant to section 61DA, I am not mandated to consider equal or substantial and significant time (by reference to section 65DAA(1) and (2) before considering any other time arrangement. In any event as was made clear by the Full Court in Goode & Goode (2006) FLC 93-286 and Marvel [2010] FamCAFC 101 as well as Sayer & Radcliffe and Anor [2012] FamCAFC 209 I propose to consider all time arrangements at large and as part of considering each of the proposals available to the Court by reference to section 60CC and incorporating therein (via section 60CC3M) a consideration of reasonable practicality.

16. In turning to section 60CC I must commence with the primary considerations namely:

    a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

17. As neither party asserts and as the evidence does not establish that there is a present need to protect [Z] from physical or psychological harm or risk thereof I am left to focus upon the benefit to [Z] of a meaningful relationship with both parents (as discussed in authorities such as, for instance, Mazorski & Albright [2007] FamCA 520).

18. The relationship that presently exists between [Z] and his father

    
    

    Mr Kennedy is good. Whether it can easily be described as “meaningful” or not is less clear.  However, I am satisfied that it is a relationship of real meaning and importance both to [Z] and to

    
    

    Mr Kennedy. 

19. Ordinarily I would be loath to engage in any attempt to differentiate between the relationship that a child enjoys with each parent.  However in this case it would appear clear from the evidence and I am so satisfied that [Z] has a primacy of relationship (both as to chronological time spent as well as depth and meaning of relationship) with

    
    

    Ms Danes. This would appear clear from the evidence of Ms Danes (which I both accept and accept in preference to that of Mr Kennedy) and consistent with the evidence of Ms D.

20. Clearly, [Z]’s relationship with Mr Kennedy, meaningful as it probably is, has developed in the most fractured and difficult of circumstances.  The parties separated when [Z] was some months of age and in the most catastrophic of circumstances (see Exhibit M6).  There have been a number of disruptions to [Z]’s relationship with his father since separation and, perhaps of greater significance, the time that [Z] has spent with his father has always occurred in the context of significant travel (primarily involving Mr Kennedy traveling to [G] to collect [Z] and then returning with him to Wollongong).

21. The parties are agreed that the distance between Canberra and Wollongong is some three to three and a half hours and that the travel undertaken by Mr Kennedy to [G] for the purpose of collecting [Z] has been in the order of one and a half to two hours.  Indeed Mr Kennedy has complained voluminously and volubly that the requirement for him to travel to [G] for changeover (whilst Ms Danes and [Z] have been resident in Canberra) has involved him undertaking more than half of the travel which he has not viewed as “fair”.

22. On the basis of the present arrangements (whereby [Z] lives with his mother in Canberra) the parties each agree (as is confirmed, if nothing else, by the relief sought by Mr Kennedy) that arrangements for time other than alternate weekend Friday to Sunday time and periods during school holidays are impracticable.  Ironically it is a continuation of this arrangement, irrespective of whether [Z] relocates with Ms Danes to [R] or not, that each party seeks in these proceedings.

23. Mr Kennedy had sought to raise a number of issues which were not otherwise the subject of any Application by him to the Court at any time including issues with respect to the details recorded upon [Z]’s birth certificate.  This included both the suggestion that Mr Kennedy was not included on the birth certificate as [Z]’s father and a desire to effect a change of the registered surname of [Z] (from Danes to Danes-Kennedy).  I had indicated clearly to Mr Kennedy that these matters could not be entertained (other than by consent) as:

    a)There was no Application before the Court to deal with such issues;

    b)The Court’s Rules would preclude the joinder of issue after the allocation of hearing dates (and particularly not during the trial itself and after Ms Danes, as the Applicant, had already given her evidence and closed her case); and

    c)There was no evidence before the Court with respect to the matters at all let alone sufficient to determine whether the Orders which Mr Kennedy sought to agitate (and which would require an oral application) were in the child’s best interests.  Accordingly those matters are not addressed save and except to the extent that Ms Danes indicated, through her Counsel, her consent to ensure that if it has not already been attended to (Ms Danes asserting that it was so) that Mr Kennedy’s details would be recorded on the birth certificate as [Z]’s father.

24. Each of the above matters would suggest that:

    a)[Z] presently has a meaningful relationship with Mr Kennedy although not a relationship with the same depth and meaning as [Z]’s relationship with his mother.  This is perhaps to be expected in light of the above evidence;

    b)The nature, extent and quality of [Z]’s relationship (or as would appear to be the sole definition of same in the case presented by Mr Kennedy the time that [Z] will spend with his father) will not change based on Ms Danes’ proposals to relocate to [R].

25. In light of the above clearly the evidence would support and favour

    
    

    Ms Danes’ proposals to relocate with [Z] to [R].

26. This consideration is not, by and of itself, determinative to the issue and, accordingly, I will thus turn to and address each of the additional considerations.

Views expressed by the child

1. [Z] has been reported by Ms D in the clearest of terms to support the proposed relocation.

2. Included within and incorporated as objects of the Family Law Act is the entirety of the International Convention of the Rights of a Child.  The Convention requires that children and young persons be given a “voice” in decisions relating to and affecting their welfare.

3. [Z] is reported by Ms D as expressing his message to the Court as “just to move”.

4. [Z] is a child who will shortly turn 9 years of age. There is no evidence as to [Z]’s maturity.  The evidence that is available before the Court (and one of the few areas of agreement between the parties) is that [Z]’s behaviour can be challenging and that his academic performance is far from excellent. That is no criticism or slight of [Z].  There have been, as already indicated, a number of significant disruptions in his life not all of which, notwithstanding the agitation of Mr Kennedy, are at the hands of Ms Danes.

5. Mr Kennedy had seized upon one specific portion of the report wherein it was suggested by Ms D that “the child has already had several moves and this is a risk factor re Austin’s Paper [being “Relocation, Research and Forensic Evaluation Part 1:  Effects of Residence Mobility on Children of Divorce, William J Austin”] (see paragraph 63 page 14 of the report)].

6. Mr Kennedy asserted that any difficulties in [Z]’s present academic performance and behaviour are as a consequence of Ms Danes’ repeated changes of accommodation and a number of changes in school for [Z] as a consequence thereof.  I do not accept that this is so.

7. Ms Danes has certainly had a number of changes of accommodation.  During cross-examination Ms Danes indicated not less than seven separate addresses at which she has lived since separation some nearly nine years ago.  It is to be remembered that the first three changes in accommodation (residing with her mother at [M], her sister and then in rental accommodation in [G]) are changes within a short space of time immediately following the separation, involving, as it did, the horrendous incident of violence referred to in Exhibit M6.  Thereafter Ms Danes has lived in Canberra since early 2010 and in three or possibly four separate accommodations.  All but the last of these (being a home owned by Ms Danes’ partner (although he is presently absent in Western Australia working)) have been rental accommodation.

8. It is all too easy to be critical of a parent, who has moved some six or possibly seven times in 8-9 years, for failing to provide stability to their child. Similarly it is easy to be critical of a parent who has, as Ms Danes concedes, seen 3 changes in school arise for their child (although in fairness the first such change would appear to have been pre-school rather than school).  However, it must be remembered that Ms Danes had fled a violent relationship, had little if any financial resources available to her on separation or for some little time thereafter (if even to date) and has thus done the best that she has been able to do with what she has had.

9. Mr Kennedy was clear (both in his written evidence and during cross-examination) that he perceives his obligation to provide support as limited to the payment of child support as assessed.  It is a credit to

   
   

   Mr Kennedy that he does, indeed, attend to payments of assessed child support and that his payments are and have always been up to date.  However, to be critical of Ms Danes for the changes that she frankly concedes within the above context is somewhat disingenuous.

10. There are a number of other factors which may well have impacted upon any present difficulties which [Z] is demonstrating academically or behaviourally. These include behaviours of one or both of his parents, their dynamic with each other and, in all probability, and as

    
    

    Ms Danes has indicated, a lack of aptitude.

11. By reference to the above, I am satisfied that the arrangements which Ms Danes proposes by relocating will bring significant benefits to these areas for [Z] even though affecting a further change in accommodation and school.  They will allow him:

    a)To be significantly less involved in travel in accompanying his mother on onerous journeys to [C]; and,

    b)To settle into a new school in accordance with his wishes;

1. A move will afford to Ms Danes the opportunity for her partner Mr P to again reside with her on a fulltime basis and provide support emotionally, physically and financially. Mr P is employed in [occupation omitted] and the opportunities for [omitted] positions in the [R] region are more abundant than Canberra.

2. The move will allow [Z] to have the benefit of a mother who is less stressed on a variety of levels including but not limited to reducing the significant travel she must undertake to pursue a relationship with her daughter (and [Z]’s sister) [Y] and otherwise to simply achieve that which she desires and which she perceives (and I accept will) bring her greater happiness. 

3. It is to be remembered that whilst the paramount consideration is and must always be the child’s best interests that:

   a)The legitimate interests of parents are not irrelevant (see judgment of Kirby J in AIF & AMS [1999] HCA 26); and

   b)The interests of parents and children are not so readily differentiated and most assuredly cannot be separated entirely.  Indeed this is inherent in the evaluation and recommendations of Ms D particularly within her recommendation wherein she opines “If the relocation is not permitted, the mother’s emotional disappointment is likely to impact on her parenting of [Z] and his sense of wellbeing” (paragraph 66).

4. The above is given further strength by Ms Danes’ evidence that she has, in recent past, been diagnosed with depression and has, but for her recent and now completed pregnancy, been prescribed and has been taking medication to address such depression.  I do not go so far as to suggest that any diagnosis of depression will abate or be obviated by the proposed relocation. However clearly there is already, as Ms D has described and as I accept, a “fragility” in Ms Danes who is a single parent of 4 children and at the age of 32.

5. The above matters are all relevant to and impact upon the assessment of and weight to be attached to the view expressed by [Z].

6. The views expressed by children and the weight to be attached to them have been canvassed in Full Court authorities such as Harrison and Woollard (1995) FLC 92-598 and R & R:  Children’s Wishes [2002] FamCA 43. By reference to such authorities I am satisfied that I cannot disregard the views expressed by [Z]. There is no evidence to suggest that they have been in any way influenced by any person and are other than a genuine expression of his views and desires. Similarly there is no evidence to suggest that he has expressed his view with other than a ready and due consideration of the consequences of the view being, from his perspective:

   a)No increase in the amount of travel required for him to maintain a relationship of the same quality (at least as regards the amount of time spent) with his father;

   b)A significant diminution in the time that he will spend in travelling with his mother to spend time and pursue a relationship with his sister [Y]; and

   c)A significant reduction thus in the time he will spend absent from school whilst engaging in such travel.

7. Accordingly I am satisfied that some significant weight should be attached to this young man’s views although far from dispositive or determinative weight. However any weight attached to such view would weigh in favour of Ms Danes’ proposals.

Nature of the child’s relationship with each parent and other persons

1. As would already be apparent I am satisfied that [Z] enjoys a meaningful relationship with each of his parents although his relationship with Ms Danes, his mother, is clearly his most important and meaningful relationship and assumes primacy in his emotional wellbeing.

2. [Z] also clearly enjoys an excellent relationship with a range of other people including his maternal grandmother, paternal grandparents and his sibling and step-siblings within Mr Kennedy’s household.

3. What is remarkable from the evidence in these proceedings and each parent’s proposal is that the ability to maintain all of the above relationships in similar if not identical fashion to that which presently occurs will continue and continue unchanged as a consequence of

   
   

   Ms Danes’ relocation proposal.  Accordingly, this factor must, again, favour Ms Danes’ proposals (in light of the collateral benefits that will otherwise flow and as addressed in a consideration of the remaining additional considerations).

The extent to which each parent has taken or failed to take the opportunity to participate in decision making, spend time with or communicate with the child

1. Mr Kennedy cannot be criticised for failing to spend time or communicate with [Z].  There is no suggestion he has done other than avail himself of all time that is available.

2. Mr Kennedy can be criticised for failing to take the opportunity to be more actively engaged with [Z] through other arrangements such as, and for instance, attending at his school or attending his sporting events.

3. Any criticism of Mr Kennedy must be tempered against the fact that he is a fulltime working parent (required to work fulltime to support the family with which he lives as well as [Z] through payment of child support) and the restrictions this imposes upon his ability to be so engaged.

4. One must also remember that there has, for nearly all of [Z]’s life, been significant travel involved in Mr Kennedy engaging with arrangements with [Z] within the area in which [Z] lives.  It is a trip of some 3-3½ hours for Mr Kennedy to travel to [Z]’s school and his other arrangements and commitments (such as [omitted] and other sports).

5. However, the fact remains that Mr Kennedy has had those opportunities available and has not been able to make any accommodation to be involved beyond alternate weekend and school holiday time.  This had included the requirement for the Court to determine interim issues in November 2013, at, immediately prior to and following the birth of Ms Danes’ most recent child, wherein

   
   

   Mr Kennedy refused to travel further than [G] for the purpose of spending time with [Z].

6. In the converse it is also clear that there will be no diminution or reduction in the availability of time or ability to participate in extra-curricular activities consequent upon any relocation by Ms Danes and [Z] to [R].  Accordingly, this factor is again supportive of Ms Danes’ proposal or, at the very least, neutral.

The extent of which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. Mr Kennedy is presently assessed to pay $68 per week in child support and there is no suggestion that he is other than fully up to date, with payments.

2. It is to be remembered that the assessment and payment of child support represents a contribution to the expenses incurred with respect to a child.  Accordingly, I accept that Ms Danes meets the majority of financial commitments for [Z] and, further, has foregone participation in paid employment (in preference to being a fulltime parent to [Z]).

3. One issue that Mr Kennedy raises, of a financial nature, is the additional cost that he perceives he will incur in changeovers occurring in the Sydney Metropolitan area rather than at [G]. This includes additional petrol and tolls. In closing submissions Mr Kennedy had indicated clearly that if relocation were to be permitted that he would “accept Ms Danes’ offer” that she provide to him an E-tag to meet tolls. I am not satisfied that such an Order can or should be made.  Whilst I accept that it is offered genuinely by Ms Danes I do not feel that such an Order would adequately or appropriately reflect an equal sharing of parental responsibility by these parents.  Each will incur tolls and travel.

4. Mr Kennedy has focussed upon the additional burden to him of travel particularly through peak hour traffic in Sydney on Fridays and Sundays. However this is expressed by Mr Kennedy both in his evidence and in that reported by Ms D as focussed upon the burden which he [Mr Kennedy] will accept. Mr Kennedy is suggested by Ms D to have “displayed resentment and irritation on the day of assessment” (paragraph 38) which is consistent with Mr Kennedy’s demeanour during the course of the trial.

5. Undertaking and sharing travel for the purpose of facilitating [Z]’s relationship with Mr Kennedy is, I feel, an active embodiment and demonstration of equal shared parental responsibility and thus something which each parent should share and has, to date, shared (whether on a strictly equal or other basis).  To adopt the terminology of Mr Kennedy’s submission with respect to same I am satisfied that for the parents to share travel (including any cost incurred with respect thereto) is “fair”.

Likely effect of change including separation from either parent

1. This is, to a not insignificant extent, a pivotal issue in this determination.

2. As would be clear from the above there would be little if any change to the practical arrangements for [Z]’s time with his father whether the relocation occurs or not.  The overall distance and time taken to travel will remain the same or close to it.

3. Other changes will occur, however, including:

   a)A likely increase in Mr Kennedy’s level of resentment and frustration should Ms Danes and [Z] relocate to [R];

   b)[Z] changing schools;

   c)[Z] having a greater opportunity to pursue a relationship with his sisters [X] (with whom he now lives) and [Y] (whom he will see on a regular basis having only seen once in his life to date);

   d)[Z] having a generally happier primary parent in Ms Danes.

4. What clearly will not change is the amount of time that [Z] will spend with his father (although a slightly greater but far from significant portion thereof may be spent in a motor vehicle) and including the time that [Z] will spend with Mr Kennedy’s partner and other children within that household and, through Mr Kennedy, the extended paternal family. That change, as regards a separation of [Z] from his father and other paternal family members, is agitated by Mr Kennedy but, on the evidence, simply not a reality.

5. Overall I am satisfied that the balance of changes will be positive for [Z] and thus supports the relocation.

Practical difficulty and expense

1. Whilst on its face this would appear, by reference to both this factor and section 65DAA(5) a significant issue, it is, I am satisfied, a neutral consideration.

2. As reasonable practicality must be considered I will thus address each of the factors in section 65DAA(5).

Distance

1. The parents will live roughly the same distance apart whether

   
   

   Ms Danes continues to live in Canberra or relocates to [R].

2. I accept that the travel distance may increase slightly but the increase will be very much dependent upon prevailing traffic conditions, the route taken and overall is comparable.

Ability of the parties to implement the arrangement

1. The parties are not able, primarily due to the distance presently between their homes and which has existed between their homes since [Z] was some months of age (but not limited to those issues as

   
   

   Mr Kennedy’s fulltime employment also impacts upon it) to implement an arrangement for time other than alternate weekends (Friday to Sunday) and periods during school holidays. This will not change in any material fashion whether Ms Danes remains living in Canberra or relocates to [R].

Parents’ current and future capacity to communicate

1. The parents’ communication is poor but, as regards significant issues particularly, travel arrangements and the authorisation to obtain information from [Z]’s school, functional.  This will not change in any fashion whether relocation occurs or does not.

Impact of the arrangement on the child

1. The time and travel arrangements will, by and large, be identical on either of the proposals presently before the Court. It is to be remembered that Mr Kennedy does not seek any significant change in arrangements and, in fact, seeks to formalise the reduction in time that has occurred (as between the Orders of 2008 and practical arrangements since 2010 when Ms Danes relocated to Canberra) and to delay the pickup time on Friday to accommodate his present work arrangements.

2. I am thus satisfied that there will be no impact upon [Z] of the proposed relocation, save that he will change his school and immediate peer group.  However, I am satisfied (particularly by reference to

   
   

   Ms D’s evidence) that this is a change which [Z] welcomes and craves and which will ultimately benefit him for the reasons set out above.

Capacity of each parent to meet the child’s needs

1. I am satisfied that there will be an enhancement of Ms Danes’ capacity to meet [Z]’s needs if she is permitted to relocate to [R]. This is particularly supported by Ms D’s evidence referred to above. Ms Danes will (as she has to date) provide the majority of [Z]’s care and any maintenance or enhancement of that care is a benefit to him.

2. I am satisfied that the capacity of Mr Kennedy to meet [Z]’s needs and his opportunity to meet those needs during the periods he spends with him will be unchanged by the relocation proposal.

Maturity, sex, lifestyle and background of the child

1. [Z] is a child who will shortly turn 9 years of age.

2. Whilst he is expressed to be somewhat challenging in his behaviours and somewhat behind in his academic performance he is clearly a child with great love and affection for his parents. He has been primarily and substantially parented, since birth, by his mother. 

3. [Z] craves and supports both a continuation of his primacy of care provided by his mother (and which is not challenged by Mr Kennedy) and an active wish to join in a relocation with her to [R].

Aboriginality

1. Neither parent nor [Z] identifies as Aboriginal or Torres Strait Islander.

The attitude to the child and responsibilities of parenthood demonstrated by each parent

1. As would be apparent from the above I am satisfied that Ms Danes has demonstrated an abundantly appropriate attitude as a parent towards her responsibilities and has discharged those responsibilities as a parent.

2. Mr Kennedy has met his responsibilities as a parent at least insofar as payment of child support and an earnest desire to continue his relationship with and be actively involved in parenting [Z].  However, I am satisfied that Ms Danes’ attitude towards her responsibilities as a parent is superior to that of Mr Kennedy and she should be supported in her preferred plan for parenting [Z] including through her proposed relocation.

Family violence

1. As indicted there are significant allegations of family violence during the relationship of these parties and particularly at the time of separation.

2. As was protested by Mr Kennedy these are, at least as regards allegations of physical violence, matters of “history”.

3. It is to be noted however, that the definition of family violence in section 4AB of the Act is broad and includes, within the illustrative example set out in sub-section 2(a) thereof the following:

   (1)    For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.

   (2)    Examples of behaviour that may constitute family violence include (but are not limited to):

   (a)    an assault; or

   (b)    a sexual assault or other sexually abusive behaviour; or

   (c)     stalking; or

   (d)    repeated derogatory taunts; or

   (e)     intentionally damaging or destroying property; or

   (f)intentionally causing death or injury to an animal; or

   (g)    unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)    unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

   (3)    For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4)    Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a)    overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

   (b)    seeing or hearing an assault of a member of the child's family by another member of the child's family; or

   (c)     comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

   (d)    cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

   (e)     being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

4. The historical nature of Mr Kennedy’s violence does not change the reality that it has happened or its impact and lasting impact on

   
   

   Ms Danes.

5. The complex dynamic is further impacted by the enmeshment of

   
   

   Mr K Snr in the conflict and noting that it was through her relationship with Mr K Snr (her then parole officer) that she was introduced to

   
   

   Mr Kennedy Jnr.

6. The manner and means of communication between these parties (or absence thereof more correctly and for the majority of times) is suggestive of significant dysfunction if not abusive undercurrents.

7. Mr Kennedy was unable to concede during cross-examination, any culpability in communication difficulty, or to self-reflect upon his demeanour and character as causing any difficulties in such communication.  Absent such insight and acknowledgement and a desire to address same it is unlikely that communication between the parties will improve.

8. That is not to suggest that Ms Danes does not have her shortcomings as regards communication.  However, given the events at separation and the general level of hostility apparent by Mr Kennedy (junior and senior) and directed by him towards Ms Danes it is explicable that communication is as it is and is unlikely to change.

Family violence orders

1. There are none.

Whether it is preferable to make orders that will least likely lead to the institution of future proceedings

1. I am satisfied that this factor is somewhat neutral.

2. The manifest absence of any significant difference between the relationship [Z] will have with his father whether relocation occurs or does not, is a curious aspect of these proceedings. 

3. There are significant benefits (and which outweigh any detriments) to [Z] and Ms Danes of the relocation occurring and I am satisfied it is more probable that arrangements will continue fluidly with benefit to [Z] if the relocation is permitted.  Thus and to that extent I am satisfied further that future proceedings, at least as regards applications for variation or enforcement, are likely to be avoided through the relocation being granted.

Summary and conclusion

1. As would be apparent from the above I am satisfied that the advantages to [Z] of Ms Danes’ proposal to relocate to [R] outweigh any suggested disadvantages.  Further, I am satisfied that any disadvantages which arise from the relocation do not, in any way, impact upon or involve [Z]’s relationship with Mr Kennedy, its continuation or its quality.

2. One element of the evidence which is entirely absent these proceedings is a consideration of that discussed by relevant High Court authority (again particularly the dicta of Justice Kirby in AIF & AMS) regarding the possibility or practicality of Mr Kennedy relocating to the same geographical area as [Z] and thus increasing the nature, extent and quality of relationship which might then occur.

3. The above absence of any evidence does not unduly concern me particularly as:

   a)Clearly relocation has not been considered, contemplated or acted upon by Mr Kennedy at any time since the separation of the parties in 2005 and when [Z] was some months of age;

   b)There is and will be no change in the amount or quality of time available between [Z] and Mr Kennedy consequent upon relocation to [R]. I accept that the travel undertaken will, potentially, be more stressful for the parties but I do not accept that it will significantly increase (whether the distance travelled or time taken to travel) or be more onerous for [Z].  Indeed, as indicated above, the overall travel which will be undertaken by [Z] (particularly when having regard to that which would be undertaken with Ms Danes in travelling to spend time with [Y]) is significantly reduced.

1. For all of the above reasons I am satisfied that Orders as sought by

   
   

   Ms Danes are entirely appropriate and should be granted. Thus I make Orders as follows.

I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date: 19.3.2014