Danner and Kelso

[2012] FMCAfam 824

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DANNER & KELSO [2012] FMCAfam 824

FAMILY LAW – Parenting matter – two and a half year old child – mother wishes to relocate with the child from Melbourne to northern New South Wales – father opposes the mother and child’s relocation and seeks that the child and the mother continue to live in Melbourne – found to be in the child’s best interests to relocate to live with his mother in northern New South Wales.

Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA

AMS v AIF (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Taylor v Barker (2007) 37 Fam FLR 461
Cowley & Mendoza [2010] FamCA 597
MRR v GR [2010] HCA 4

Applicant: MR DANNER

Respondent: MS KELSO

File Number: MLC 4504 of 2011

Judgment of: Bender FM

Hearing dates: 25, 26, 27, 28 and 29 June 2012

Date of Last Submission: 29 June 2012

Delivered at: Melbourne

Delivered on: 10 August 2012

REPRESENTATION

Counsel for the Applicant: Ms Theoharopoulou

Solicitors for the Applicant: Lampe Family Lawyers

Counsel for the Respondent: Ms Stavrakakis

Solicitors for the Respondent: Victoria Legal Aid

ORDERS

1. The parties have equal shared parental responsibility for the child X born (omitted) 2010 (“X”).

2. The mother be permitted to relocate with X to northern

   
   New South Wales

   .

3. X live with the mother.

4. X spend time and communicate with the father as follows:

   For the first 12 weeks immediately after relocation:

   (a)The mother travel with X to Melbourne once every three weeks arriving in Melbourne on a Thursday and departing Melbourne the following Monday and for the father to spend time with X:

   (i)from 4.00pm on the Thursday of the mother’s and X’s arrival until 4.00pm the following day; and

   (ii)from 10.00am Saturday until 10.00am Monday.

   After the first 12 weeks and thereafter until X commences school:

   (b)The mother travel with X to Melbourne once every month arriving in Melbourne on the second Thursday of each month and departing Melbourne on the following Monday with the Father to spend time with X as per orders 4(a)(i) and 4(a)(ii) herein until February 2014 when X shall spend time with the father from 4.00pm on the Thursday of the mother and X’s arrival until 10.00am on the Monday.

   (c)Time between the father and X pursuant to order 4(b) herein shall be suspended for the months of December 2012 and December 2014 when the father shall spend time with X at times to be agreed between the parties when the mother and X are in Melbourne between 20 and 26 December.

   (d)When the father is spending time with X pursuant to orders 4(a) and 4(b) herein, the father shall collect X from and return X to the Sky Bus Depot at (omitted) Station unless otherwise agreed between the parties.

   (e)The mother be responsible for the booking of and cost of flights and accommodation required to give effect to orders 4(a),(b) and (c) herein and she shall inform the father at all times of the flight details including any changes to flights.

   (f)When X is not exercising face-to-face time with the father, the father shall have Skype or telephone time with X no less than three times each week at such times as may be agreed between the parties.

   (g)Upon the father giving the mother no less than seven days’ written notice of his intention to travel to northern New South Wales, the father shall spend time with X in northern New South Wales for such time as is agreed between the parties and failing agreement from 4.00pm on the day of the father’s arrival until 4.00pm the following day and from 10.00am the following day until 10.00am two days later and continuing in that cycle for such time as the father remains in northern New South Wales.

   (h)At such other times as may be agreed between the parties.

   Once [X] commences formal schooling:

   (i)During each school term, on one weekend each term as agreed between the parties in Victoria and where possible such weekend time coincide with a long weekend.

   (j)For half of all New South Wales school holiday periods as agreed between the parties and failing agreement for the first half of the holidays in X’s first year of school and each alternate year thereafter and in the second half of the school holidays in X’s second year of school and each alternate year thereafter to occur in the State as agreed between the parties and failing agreement in Victoria.

   (k)Upon the father giving the mother no less than seven days’ written notice of his intention to travel to northern New South Wales, the father spend time with X in northern New South Wales for such time as agreed between the parties and failing agreement from 10.00am on the day of the father’s arrival to 10.00am on the day of the father’s departure.

   (l)The mother be responsible for the booking of and the cost of the flights and accommodation (if any) when X is spending time with the father in Melbourne and she shall inform the father at all times of the flight details including any changes to flights.

   (m)When X is not exercising face-to-face time with the father, the father shall have Skype or telephone time with X no less than three days in each week at such times as may be agreed between the parties.

   (n)As otherwise agreed between the parties.

5. The father is to keep the mother informed if he cannot exercise overnight time with X whilst the mother and X are in Melbourne and there will be no provision for make-up time.

6. The mother shall ensure that she regularly plays to X all videos and audio tapes prepared for X by the father, reads to X all letters and cards sent to X by the father, give X all presents sent to X by the father and utilises a ‘life story book’ that focuses on X’s relationship with his father.

7. If X is deemed too ill to travel by airplane by a medical practitioner, the parent in whose care X is in at the time will provide or cause to be provided to the other parent a medical certificate as well as an authority for the other parent to discuss X’s condition with the medical practitioner giving the medical certificate, as soon as reasonably practicable and before any anticipated time of travel.

8. In the event X is unable to spend time with the father in Melbourne due to ill health, X shall spend make up time with the father in Melbourne as agreed between the parties and failing agreement as follows:

   (a)No less than two weeks after any missed time if a weekend;

   (b)If term school holidays, for four extra days in the following term holidays;

   (c)If the long summer vacation, if in the first half of the holidays, X’s time with the father shall commence from when X recovers and if X’s time with the father is in the second half of the holidays, it shall commence from when X recovers and X shall spend an additional four days in the first term vacation immediately following the summer vacation.

9. For the purposes of any interstate travel, each parent should provide to the other a copy of their ticket/itinerary by email at least seven days prior to any intended travel.

10. Each party keep the other informed at all times of their current residential address and contact telephone number.

11. The father be permitted to attend all kindergarten and school events relating to X normally attended by parents and receive at his expense all school reports, school photograph order forms and newsletters.

12. Each party shall advise the other of any serious illness or injury suffered by X as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

13. Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of X and from permitting any other person so to do.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 4504 of 2011

MR DANNER

Applicant

And

MS KELSO

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties are the parents of X born (omitted) 2010 (“X”).  The matter comes before the Court as the mother wishes to move with X from Melbourne to (omitted) in northern New South Wales.  The father opposes the move and seeks that X and the mother continue to live in Melbourne.

Background

1. The father was born in Melbourne on the (omitted) 1980 and is 32 years of age.  He is a (occupation omitted)(omitted).  The father has not

   
   

   re-partnered.

2. The mother was born on the (omitted) 1977 and is 34 years of age.  She is a (occupation omitted) but is currently engaged in home duties.  The mother has not re-partnered.

3. The mother was born in northern New South Wales.  At age 18, she moved to Brisbane to undertake a (course omitted).  In 2003 she moved to Melbourne, together with her friend Ms A, where the mother obtained full-time employment as a (occupation omitted).

4. The parties met in Melbourne in 2003 and commenced cohabitation in December 2005.

5. The parties travelled with X to the home of the maternal grandmother in (omitted) in September 2010.  After staying for two weeks, the father returned to Melbourne and the mother and X remained in (omitted) where she was recovering from minor surgery having had a benign lump removed from her breast.

6. Shortly after the father returned to Melbourne, because of tensions in their relationship, the mother advised the father by telephone that she wished to separate and remain in (omitted) with X.

7. After lengthy discussions with the father, the mother returned to Melbourne with X in late September 2010 in an attempt to work out her relationship with the father.  The parties did not resume cohabitation.

8. In October 2010, because of difficulties with the arrangements for X to spend time with the father, a family meeting was called (“the October meeting”).  Present were the father, the paternal grandmother, the paternal grandfather, the mother and the maternal grandmother.

9. At the October meeting, the parties agreed to a ‘spend time’ regime between the father and X whereby X would spend day time only with the father for seven days in each fortnight.

10. It is the mother’s and the maternal grandmother’s evidence that at the October meeting, the father and the paternal family also agreed that the mother and X would remain in Melbourne for a further six months and would then relocate to (omitted) in April 2011.

11. It is the evidence of the father and paternal grandmother that at the October meeting whilst the possibility of the mother and X relocating to (omitted) was raised, but no agreement was reached that the mother and X would relocate.

12. After the mother’s return to Melbourne in September 2010, the parties attempted to repair their relationship but in February 2011 the relationship ended on a final basis.

13. On 8 April 2011, the mother’s then solicitors forwarded lengthy correspondence to the father in which they advised the father of the mother’s proposal to relocate with X to northern New South Wales.

14. The father responded to the mother’s then solicitors by email dated 2 May 2011, which indicated that he strongly opposed the mother’s proposed relocation with X.

15. On 24 May 2011, the father filed an Initiating Application in which he sought an urgent order restraining the mother from relocating with X from the Melbourne area.  The father sought that the listing of the Application be abridged.  The Registrar declined to abridge the father’s Application and it was made returnable on 4 July 2011.

16. On 26 May 2011, the father’s solicitors filed an Application for Review in relation to the Registrar’s decision not to abridge the Application.  The Application to Review was listed on 21 June 2011.

17. On 16 June 2011, the mother’s then solicitors forwarded a fax to the father’s solicitors at 5.12pm which provided:

    We further advise that our client’s arrangement for temporary accommodation has unexpectedly fallen through.  Initially she was staying at the home of a girlfriend and since 15^th June she has been living in a motel.  The arrangement is obviously unsuitable for the child and our client does not have the income to continue to pay for motel accommodation. 

    We therefore inform you that our client and X will be leaving Melbourne tonight to stay with her mother in northern

    
    New South Wales

    pending Court determination or agreement.

18. As the father was touring with (omitted) at the time the mother’s then solicitors sent the fax of 16 June 2011, the first the father knew of the mother’s move to northern New South Wales with X was when he spoke to X by Skype on the evening of 17 June 2011.  The father realised that X was at the house of the paternal grandmother in (omitted).

19. When the matter came before the Court on 21 June 2011, Federal Magistrate Turner made orders requiring the mother to bring X to the child minding area of the Federal Magistrates Court at 9.00am on 4 July 2011. His Honour made further orders that the parties attend upon a Family Consultant of the Federal Magistrates Court for a child conference pursuant to section 11F of the Family Law Act 1975 (“the Act”) on 4 July 2011.

20. Having heard viva voce evidence from the Family Consultant who interviewed the parties at the section 11F conference on 4 July 2011, Federal Magistrate Turner adjourned the matter to 5 July 2011.

21. On 5 July 2011, Federal Magistrate Turner listed the matter for final hearing on 28 September 2011 for two days and otherwise ordered that, until further order and subject to the father providing seven days’ suitable accommodation for the mother and X from 5 July 2011 and paying a bond and one month’s rent for accommodation for the mother and X in Melbourne, the mother not cause X to live outside the Melbourne metropolitan area.

22. Federal Magistrate Turner further ordered that X live with the mother and spend time with the father each Monday from 9.00am to 4.00pm and from 2.00pm on Wednesday to 2.00pm on Thursday in each week.

23. Subsequent to His Honour’s orders in July 2011, the mother obtained rental accommodation in a small one bedroom apartment in (omitted) for herself and X.  She and X have remained living in that apartment.

24. When the matter came before the Court on 28 September 2011, it was unable to be heard as it was apparent that the matter would require five days of Court time.  The matter was therefore adjourned to 25 June 2012 for a five day hearing.

25. Further interim orders were made on 28 September 2011 by Federal Magistrate Turner which required the mother and X to remain in Melbourne but made provision for the mother and X to spend holiday time in New South Wales over the Christmas period and for X to continue to spend time with the father pursuant to the June 2011 orders.

26. In addition Federal Magistrate Turner ordered that the mother be permitted to travel to New South Wales with X once every three weekends from 12.00 noon Thursday to 9.00am Monday and for the father to spend time with X from 12.00 noon to 4.00pm each Saturday the mother did not travel to New South Wales.

27. X’s living arrangements have accorded with Federal Magistrate Turner’s orders since September 2011.

The evidence

The father’s evidence

1. In support of his application, the father relied on his affidavits filed

   
   

   24 May 2011, 23 June 2011, 16 September 2011, 27 April 2012 and

   
   

   21 June 2012.  The father also relied on the following affidavits:

   (a)Mrs Danner filed 17 June 2011;

   (b)Ms D filed 17 June 2011 and 3 October 2011;

   (c)Ms KD. filed 23 June 2011;

   (d)Mr B filed 16 September 2011;

   (e)Mr E filed 16 September 2011; and

   (f)Mr G filed 5 June 2011.

The father

1. It is the father’s evidence that he has a close and loving relationship with X, which he believes he will not be able to maintain in the event that the mother is able to relocate with X to (omitted).

2. It is the father’s evidence that he is employed on a full-time basis as a (omitted).  He is also involved in (omitted) with a friend (omitted).

3. It is the father’s evidence that he and his various bands have made several albums and have a solid fan base which he hopes to expand on into the future. 

4. In order to promote his bands’ albums, the father occasionally tours Australia, most recently on the eastern seaboard of Australia.

5. It is the father’s evidence that he has instructed his management that his professional commitments must be organised around the time that he spends with X and that he has made it very clear that X is his first priority.

6. It is the father’s evidence that, at this time, any monies that are generated from the efforts of his various projects are reinvested into those projects to produce CDs and to purchase merchandise.  It is the father’s evidence that, other than a minimal per diem when touring of $30.00 a day which pays for food, he has not received an income from his various artistic endeavours in recent times.

7. It is the father’s evidence that he is therefore dependant upon the Newstart Allowance for his income. 

8. It is the father’s evidence that the Child Support Agency has assessed his child support payments as nil, but that he voluntarily pays the mother $210.00 per month by way of child support for X.

9. It is the father’s evidence that in the event that the mother and X were to relocate to northern New South Wales, he would not be financially able to travel with any degree of regularity to northern New South Wales in order to visit X.  It is his evidence that even with discount airfares and staying in the most basic of accommodations such as hostel accommodation, he would need in excess of $500.00 for each trip.  It is the father’s evidence that he cannot generate sufficient income to fund that travel.

10. It is the father’s evidence that after paying child support, rent and other set commitments, he has $11.00 of disposable income every fortnight.

11. The father expresses genuine concern that the maternal family, and in particular the maternal grandmother harbour very negative views of him.  It is the father’s evidence that if X were to live with the mother in the maternal grandmother’s home, X would be exposed to that household’s negative views of him as both a person and as a father.

12. It is the father’s evidence that if the mother and X were to relocate to northern New South Wales he would not be in a position to move there himself.  It is his evidence that he needs to be Melbourne based in order to pursue his professional career.  Further, it is the father’s evidence that his family and friends are all based in Melbourne and that he does not know or have any friendship base in northern New South Wales.  It is the father’s evidence that he would be very isolated if he were to move to northern New South Wales and he did not see such a move as being achievable for him.

13. It is the father’s evidence that the mother has been living in Melbourne for nine years and has developed a strong support network of close friends who provide her with practical and emotional support. 

14. It is the father’s evidence that the mother is a fully qualified (occupation omitted) with the capacity to obtain employment in Melbourne utilising her skills in this profession.

15. It is the father’s evidence that he and his family, consisting of his mother and two sisters, are available to assist the mother with X’s care.

16. It is the father’s evidence that his mother and both his sisters have offered to assist the mother on many occasions since the parties separated however the mother has rebuffed all their offers of assistance on the basis of the current lack of trust between the mother and his family.

17. On 18 June 2011, having just discovered that the mother had taken X to northern New South Wales without his knowledge, the father sent the following email to his mother and sister Ms D:

    (omitted),

    I am putting together strategies to try and see X as much as possible after Ms Kelso’s despicable, disgraceful and illeagal (sic) re-location North.  Make no mistake, the ultimate goal now is that X lives with our family.  It may take years, but I am taking on more (omitted) students, (omitted) is going to start paying me as of August, and Melbourne will be home to X always.  Mr E is organising to become a double agent, trying to catch Ms Kelso out in drug use, lies or any form of poor parenting, which he will then swear off on in court.  I am going to being to record all my Skype calls and if we stay calm, polite and continually focus on X, she will fuck up and we will have further evidence of her hostility and lies. They started the dirty game, and eventually it will come crashing down around them.  The gloves are well and truly off.

    It’s going to hurt for some time yet, but if we play it right, I believe that we can get X back home to Melbourne where he belongs, and then isolate Ms Kelso of the course of months and years, wearing her down, and eventually minimising her influence on X.  Until I have been ordered by the court to move up North, I will stay in Melbourne, continue to build my business and then slowly wear her down once they are back in the city.  She must not be allowed to do to X what has been done to her by the lying, abusing and common “Mother” whom she looks up to.

    …

    Once again, I am deeply sorry that my poor choices in my 20’s have resulted in us having people like this in our lives.  They are beneath us, they are pathetic, and over the next 17 years, they will slowly fade, whatever the result.  We will be left with our loving, beautiful and nurturing relationship with X.

1. The mother read this email as the father had provided her with the requisite passwords to enable her to access his email account.  She had continued to access his email account after the parties had separated.

2. It is the father’s evidence that he finds his email to be “disgusting” and that it had been written by him in a motel room while he was on tour immediately after he had found out that X had been taken by the mother to northern New South Wales without his consent or knowledge.

3. It is the father’s evidence that it was written when he was extraordinarily distressed and that it in no way reflected his intentions towards the mother.  It is his evidence that at no time did he ever intend to wear her down, isolate her or in any way try to remove her from X’s life.  It is the father’s evidence that his support of the mother as X’s primary carer at all times since X’s birth and since the parties separated is proof that he has not behaved in the manner that his email outlined.

4. It is the father’s evidence that he has a genuine concern that the mother does not recognise or support the importance of his role as X’s father.  It is his evidence that, absent the current orders for him to spend consistent and regular time with X, such time would not be taking place.

5. It is the father’s evidence that in the event the mother is allowed to relocate to northern New South Wales, the mother will not support X’s relationship with him and will not encourage an ongoing and meaningful relationship between himself and his son.

6. It is the father’s evidence that in addition to the close and loving relationship he has with X, X also has close and loving relationships with his paternal grandmother, his paternal aunts and his cousin A, the daughter of his sister Ms D.  It is the father’s evidence that if X were to relocate to northern New South Wales, X’s relationship with the extended paternal family would also be severely impacted.

7. The father concedes that at this time, he and the mother have real difficulty in communicating with each other.  He does however note that they are able to discuss matters pertaining to X and have been able to reach agreement to vary the existing arrangements for X to spend time with his father when need has arisen. 

8. The father expresses the hope that the communication between he and the mother can and will improve into the future and was open to suggestions for counselling to assist he and the mother to better communicate.

9. The father also expresses the hope that the mother will accept the genuine offers of support offered by his family and that there can be a thawing of that relationship for the betterment of X and his care.

Mrs Danner

1. Mrs Danner is the paternal grandmother.  She swore an affidavit in these proceedings on behalf of the father which was filed on 17 June 2011.  She also gave viva voce evidence at the final hearing of this matter.

2. The paternal grandmother describes a special and loving relationship with X and confirms that they regularly spend time with each other when X is with his father.

3. The paternal grandmother also confirms that when the father has X overnight, they often stay at her home in (omitted).  She also gave evidence that X spends time with the extended paternal family when he is spending time with his father.

4. It is the paternal grandmother’s evidence that X has two loving parents who have both contributed to him being a happy, lovely little boy who has all his physical, emotional and developmental needs met by his parents.

5. It is the paternal grandmother’s evidence that after the parties separated she offered to assist the mother in X’s care.  The paternal grandmother states that she sent the mother emails indicating her availability to assist the mother in her care of X.  It is the paternal grandmother’s evidence that the mother has responded to her emails rejecting all such offers of assistance.

6. It is the paternal grandmother’s evidence that she was saddened by the separation of the parties and that, whilst understanding the difficulties the mother is facing because of the parties separation and the requirement she remain in Melbourne, the paternal grandmother sees her role as being X’s grandmother and that her focus is to ensure X’s happiness and well-being.

7. It is the paternal grandmother’s evidence that when she received the email from the father after the mother had taken X to New South Wales in June 2011, she ensured that she responded in neutral terms to him and encouraged him to make sure he did everything in his power to spend time with X when he was touring in that region.  It is her further evidence that when the father returned to Melbourne, she spoke to him about the inappropriateness of his comments and is of the view that they did not properly reflect her son’s intent towards the mother. 

8. In relation to the October meeting, it is the paternal grandmother’s evidence that the primary focus of that meeting was to reach agreement about the times that X would see his father. 

9. The paternal grandmother agrees that there were discussions about the possibility of the mother and X relocating to New South Wales; but there was no agreement reached that the mother would do so within six months of that meeting.

10. It is the paternal grandmother’s evidence that it was not for her and her late husband to agree to such an arrangement.  Whilst relocation was most definitely canvassed, it is her understanding that the parties discussed the possibility of mediating that issue in the future and that there was no commitment given or agreement reached to any move by the mother and X taking place.

11. The paternal grandmother expresses concerns about the level of hostility that the maternal family and in particular the maternal grandmother harbours towards the father.  She is most concerned as to the impact that this hostility would have on X in the event that he was living in the maternal grandmother’s household. 

12. The paternal grandmother impressed as a caring and loving grandmother whose concerns were for the well-being of her grandson.  Her overtures to the mother of support I found to be genuine and I believe that she is saddened by the mother’s inability to accept those offers.

Ms D

1. Ms D is the father’s sister.  She swore two affidavits on behalf of the father, which were filed on 17 June 2011 and 3 October 2011.  She also gave viva voce evidence at the final hearing of this matter.

2. Mrs Danner impressed as a loving and caring aunt and sister who is genuinely fond of her nephew X.

3. There were a series of email exchanges between Mrs Danner and the father in June 2011 when arrangements were trying to be put into place between the father and the mother for the father to spend time with X in northern New South Wales.  As the father was touring, it was Mrs Danner’s evidence that the email communication was being co-ordinated through her.

4. In one of the emails sent by Mrs Danner to her brother, she referred to the mother in the following terms:

   She is an absolute, unmitigated cunt.[1]

   [1] Affidavit of Ms Kelso affirmed 23 May 2012, Annexure SK14 .

5. This email was seen by the mother when she accessed the father’s email account subsequent to the parties’ separation.

6. Mrs Danner agrees that her language was totally inappropriate and that the email was sent after there had been an exchange of 14 emails between the mother and the father trying to settle the arrangements for her brother to spend time with X.  Mrs Danner gave evidence that she had become incredibly frustrated with what she perceived at that time as the mother making it extremely difficult for the father to spend anytime with his son.

7. It is the aunt’s evidence that subsequent to the mother returning to Melbourne in accordance with the orders made by Federal Magistrate Turner, she had sent a number of emails to the mother offering her assistance and support, all of which had been rejected by the mother.

8. It is Mrs Danner’s evidence that prior to the parties separating, she considered that she and the mother to have become friends and that similarly her daughter A had become very close to the mother.  She said both she and her daughter had been saddened by the breakdown of their relationship with the mother.  It is her evidence that her offers of assistance to the mother for her care of X remain and she is available to assist the mother in caring for X at any time.

9. Mrs Danner impresses as a genuine witness and a loving and caring aunt whose offers of assistance to the mother were and are genuinely made.

Ms KD

1. Ms KD is also the father’s sister and she swore two affidavits on behalf of the father filed on 20 June 2011 and 23 June 2011.  Mrs Danner also gave viva voce evidence at the final hearing of this matter.

2. It is Mrs Danner’s evidence that she has attempted to remain apart from the dispute between her brother and the mother and has instead focussed on being a loving and caring aunt for X.

3. She describes the father and X as having a special relationship and that X is a very important member of their family.

Mr B

1. Mr B swore two affidavits on behalf of the father filed 2 July 2011 and 16 September 2011.  Mr B also gave viva voce evidence at the hearing of this matter.

2. It is Mr B’s evidence that he and the father are in a business partnership with the band (omitted).  It is Mr B’s evidence that he is responsible for the finances of the business whilst the father is involved in the creative aspects of their endeavours.

3. Mr B confirms that at this time, any monies made by (omitted) are re-invested in the business to enable the production of CDs and the purchase of further merchandise.  Mr B confirms that, at this time, neither he nor the father has received income from the business.

4. It is Mr B’s evidence that (omitted) has recently released an album, “(omitted)”, and that they have been touring the eastern seaboard in an endeavour to promote the album.

5. It is Mr B’s evidence that he and the father are optimistic as to the future of (omitted) and have expectations that it will become more financially successful in the future.

Mr E

1. Mr E filed two affidavits on behalf of the father on 3 July 2011 and 16 September 2011.  Mr E also gave viva voce evidence at the final hearing of this matter.

2. It is Mr E’s evidence that he and the father are in the band, which performs as (omitted).

3. It is Mr E’s evidence that both he and the father have family commitments and that they arrange their work commitments in order to ensure that they meet their family commitments first. 

4. It is Mr E’s evidence that (omitted) is a Melbourne based band and that their performances are Melbourne based.

5. Mr E confirmed that he also knows the mother, having met her in (omitted), which is where his partner is from.

6. It is Mr E’s evidence that he believes X to have a close and loving relationship with both of his parents and that he believes both to parent X very well.

Mr G

1. Mr G swore an affidavit on behalf of the father filed 5 June 2012.  Mr G gave viva voce evidence by telephone link.

2. Mr G is the father’s manager based in (omitted) in New South Wales. 

3. It is Mr G’s evidence that he has been the father’s manager since late 2011.

4. It is Mr G’s evidence that the father has instructed him that all bookings and tour commitments need to be made such that they accommodate his time with X and that the father had made it very clear to him that X is his paramount commitment.

5. It is Mr G’s evidence that he books work for the father to coincide with the days and times the father is available around his parenting duties.

6. It is Mr G’s evidence that he believes the father has a real future in the music industry describing him as a unique talent who already has a solid fan base.

The mother’s evidence

1. In support of her case, the mother relied on her affidavits filed 24 June 2011, 19 September 2011, 23 September 2011 and 24 May 2012.  The mother also relied upon the following affidavits:

   (a)Ms M filed 24 June 2011 and 9 May 2012;

   (b)Ms S filed 28 May 2012; and

   (c)Ms A filed 24 May 2012.

The mother

1. It is the mother’s evidence that she wishes to relocate with X to live with her mother and step-father in their home in (omitted), just out of (omitted).  It is the mother’s evidence that this will provide her with the emotional, practical and financial support that is not available to her in Melbourne.

2. It is the mother’s evidence that she feels totally isolated in Melbourne from all the necessary supports that will enable her to provide properly for X both now and into the future.

3. It is the mother’s evidence that she and the father had a volatile relationship with issues of fidelity, trust and lifestyle being a constant source of disagreement between them.

4. It is the mother’s evidence that when she became pregnant with X, she and the father had discussions about moving closer to her family in order for them to be able to provide the mother with their support after the arrival of the baby.

5. It is the mother’s evidence that because of her unhappiness with the relationship, whilst the parties were in (omitted) visiting her family in September 2010, she formed the view that the relationship could not continue and advised the father accordingly after his return to Melbourne.

6. It is the mother’s evidence that after many lengthy and difficult telephone conversations, she was persuaded by the father to return to Melbourne with a view to trying to reconcile their relationship and make a future together with their son.

7. It is the mother’s evidence that when she and X returned to Melbourne in September 2010, she and the father did not resume cohabitation.  It is her evidence that the father would attend her home on a daily basis and insist upon taking X with him.  It is her evidence that she found this very distressing and that she asked her mother to come to Melbourne to assist in convening a family meeting in order to discuss the future arrangements for X.  This is the October meeting.

8. It is the mother’s evidence that at the October meeting, she, the father, the maternal grandmother and the paternal grandparents were present and the arrangements for the time X was to spend with the father were discussed.  It is the mother’s evidence that there was also discussion about the mother and X returning to live in northern New South Wales with her parents in approximately six months’ time from that date.  It is the mother’s evidence that this was agreed to by the father on at least four occasions during this discussion.

9. It is the mother’s evidence that it was agreed at the October meeting that she and X would remain in Melbourne for a further six months in order for the relationship between X and his father to be consolidated.  Further, sadly on the day of the October meeting, the paternal grandfather was diagnosed with terminal brain cancer.  It is the mother’s evidence that the agreement for her to stay a further six months in Melbourne was also in part to enable X to have time with his paternal grandfather.

10. It is the mother’s evidence that the father’s career choice means that he will never be in a position to provide X, or herself, with any real financial support given his very limited income.  It is the mother’s evidence that because of her responsibilities as X’s primary care, her capacity to return to full-time employment as a (occupation omitted) in Melbourne is limited, given that the expectation in the (omitted) industry is that she work late on at least one evening per week as well as one day on the weekend.

11. It is the mother’s evidence that she has made enquiries as to the availability of child care in Melbourne but that the cost of same is prohibitive. 

12. It is the mother’s evidence that she has made enquiries in the (omitted) area and has bona fide opportunities for employment on a part-time basis in two separate (business omitted) as well as in her cousin’s (business omitted).

13. It is the mother’s evidence that she also has the capacity to sell (omitted) in the local (omitted) markets.  The mother indicated that she has considerable stock that is currently stored in Melbourne.  It is her evidence that she is unable to pursue this business in Melbourne as she does not have a vehicle that will enable her to transport her stock nor the child care assistance for X as the markets in Melbourne are on the weekend.

14. In addition, the mother and her friend Ms S are in the very early stages of establishing a business (omitted) also through markets.

15. It is the mother’s evidence that while she does have good friends in Melbourne having lived here since 2003, those friends have busy lives and are not able to provide her with the practical and emotional support that would be available to her from her family and long-standing friends in the (omitted) area.

16. Whilst the mother concedes that it was inappropriate of her to have been reading the father’s emails after separation, it is her evidence that the father had provided her with the passwords to his email addresses in February 2011 on the basis that he had nothing to hide from her. It is the mother’s evidence that the July 2011 email from the father to his mother and sister was incredibly distressing to her and that this email has undermined any trust that she had in the father, his mother or his family.

17. It is apparent from the tenor of the mother’s evidence that since the reading of that email, she has viewed all the offers made by the paternal family for assistance through the prism of her distrust and is unable to accept those offers as being genuine or as being made other than with a view to wearing her down and undermining her role in X’s life.

18. It is the mother’s evidence that X has a close and loving relationship with his father and that for all of his shortcomings as a partner, he is a loving and devoted father.

19. The mother acknowledges that if she were permitted to relocate to northern New South Wales with X, the relationship between X and his father would be impacted.  It is the mother’s evidence that her proposal whereby she will bring X to Melbourne every month for four days as well as holiday time together with implementing the recommendations of the Report Writer Mr E for Skype, life books, playing recordings of the father talking, singing and reading books as well as encouraging the father to visit X in northern New South Wales at any time he can, will greatly ameliorate the impact of the move on X’s relationship with his father.

20. It is the mother’s evidence that having to remain in Melbourne without the emotional, practical and financial support of her family and friends, where she feels isolated and unsupported and where she is unable to balance her commitments to financially support X with her caring responsibilities is impacting on her own mental health and sense of well-being such that her ability to properly parent X is being severely impacted.

21. It is the mother’s evidence that she believes that it is in X’s best interest that she, as X’s primary carer, be able to relocate to northern New South Wales so that she can have in place the supports that will enable her to be the best parent and provide X with the best financial security now and into the future.

Ms E

1. Ms E is the maternal grandmother.  She filed two affidavits on behalf of the mother on 24 June 2011 and 24 May 2012.  Ms E also gave viva voce evidence at the final hearing of the matter.

2. It is Ms E’s evidence that the mother and X can live with she and her husband in (omitted) for as long as they choose.  She describes a large home which would afford the mother and X their own bedrooms, bathroom and living area.

3. It is Ms E’s evidence that she and the mother are close and that her other children, being the mother’s brother and sister, live in Brisbane which is less than two hours from where she lives.  She described them as a close and loving family.

4. It is Ms E’s evidence that she and her husband offer what assistance they can to the mother while she has been forced to remain in Melbourne, including providing financial assistance to enable her to fly to visit them regularly.  It is Ms E’s evidence that she has also visited the mother in Melbourne as often as she can.  It is Ms E’s evidence that she and her husband have placed themselves in considerable debt in supporting the mother and that they will not be able to offer that level of financial support to the mother in Melbourne indefinitely.

1. It is Ms E’s evidence that when the mother returned to Melbourne in September 2010 after the parties’ initial separation, the mother rang her in a distressed state in October 2010 because of the father’s insistence that he take X on a daily basis.  It is Ms E’s evidence that she flew to Melbourne and organised a meeting of the maternal and paternal families to discuss the arrangements for X.

2. It is Ms E’s evidence that at the time of the October meeting, the relocation of the mother and X to northern New South Wales within six months was discussed.  It is her evidence that she sought confirmation from the paternal family of their agreement to her daughter and grandson’s relocation on four occasions during the October meeting and that their agreement to the move was given each time.

3. In her evidence, Ms E appears to be somewhat scathing of the lack of support offered by the paternal family to her daughter in Melbourne.  She suggests that the emails sent by the paternal grandmother and paternal aunt offering assistance to her daughter were for the purposes of this litigation only.

4. It is apparent from Ms E’s evidence that she does not like the father and was very critical of him, especially in the context of how she feels he treated her daughter during their relationship.  She did however speak positively of him in relation to his parenting of X.

5. When specifically questioned as to whether X’s move from Melbourne would adversely impact on his relationship with his father, it is Ms E’s evidence that there would be absolutely no impact if X were to relocate.  It is her evidence that this is because the mother would do everything possible to ensure that X visited his father regularly in Melbourne as well as ensuring regular communication between X and his father utilising Skype, videos, tapes and life books.  It is her evidence that she has seen how hard the mother works to ensure that X has regular contact with his father when she is in New South Wales.

Ms S

1. Ms S swore an affidavit on behalf of the mother in these proceedings filed on 28 May 2012.  Ms S also gave viva voce evidence at the final hearing.

2. Ms S and the mother have been friends for approximately ten years.  Ms S lives in Brisbane.

3. It is Ms S’s evidence that since 2010, she and the mother have discussed the possibility of starting up a small business (omitted) for sale at local markets in northern New South Wales.

4. It is apparent from Ms S’s evidence that this plan is very much in the early stages having been delayed by the mother’s enforced stay in Melbourne and by Ms S recently giving birth.

5. Ms S also gave evidence that she had discussions with the mother and the father when the mother was pregnant with X and they both told her of their plan to relocate to northern New South Wales after the birth of their child. 

Ms A

1. Ms A filed an affidavit on behalf of the mother in these proceedings on 24 May 2012.  Ms A also gave viva voce evidence at the final hearing.

2. It is Ms A’s evidence that she and the mother have been friends for over 15 years.

3. It is Ms A’s evidence that she and the mother moved to Melbourne in 2003.

4. Ms A is one of X’s godmothers and describes an ongoing and close friendship with the mother.

5. It is Ms A’s evidence that she sees the mother regularly in Melbourne, though she is in full-time employment and is limited by her own obligations including her life with her full-time partner.

6. Ms A confirms that she occasionally babysits X for the mother but again is constrained by the fact she runs her own business and has her own obligations.

7. It is Ms A’s evidence that she had discussions with the father prior to the parties’ separation in which he indicated that he and the mother would be moving to northern New South Wales with X.

8. It is Ms A’s evidence that she and her partner are not committed to remaining in Melbourne into the future.

Mr E

1. Mr E is a Family Consultant with the Federal Magistrates Court of Australia.  Mr E prepared two Family Reports in this matter, the first dated 24 August 2011 and the second dated 17 May 2012.  Mr E also gave viva voce evidence at the final hearing of this matter.

2. In Mr E's Report of 24 August 2011 in paragraph 45, he describes the father as follows:

   Mr Danner presented as a father who loves his son.  Throughout the assessment he demonstrated a clear ability to understand X’s needs and to attend to them in an appropriate manner. 

3. In his Report of 24 August 2011 at paragraph 47, Mr E describes the mother in the following terms:

   Ms Kelso presented as an articulate woman who nevertheless displayed heightened levels of distress during the assessment that appeared to emotionally overwhelm her on occasions.  It was apparent that she is finding the current arrangements and constraints very difficult.  She is also particularly distressed that she is now being required to assume primary responsibility for what she perceives to be longstanding inadequacies in Mr Danner’s willingness and capacity to financially support either her or X.  Ms Kelso appears emotionally distraught at the prospect of having to remain in Melbourne where she perceives she does not have any support, and where she feels she will again have to put aside her own plans in favour of a person in whom she has little, if any confidence in their ability or willingness to appropriately assume a paternal role.

4. Further in paragraph 48 of his Report of 24 August 2011, Mr E notes as follows:

   Ms Kelso believes that the prospects for both her and X are significantly more positive in NSW than they would be in Melbourne.  She was able to explain in some detail how she would meet the requirements of physically caring for her son, whilst also building a reasonable financial future for him.  She is significantly concerned that she will not be able to achieve these goals if she is required to remain in Melbourne.  If allowed to relocate to NSW with X, the writer formed a view that she would be able to appropriately fulfil her parental responsibilities towards this child.

5. In relation to X, in his Report of 24 August 2011 at paragraph 52, Mr E makes the following observations:

   X presented as a delightful little boy who appears to be appropriately meeting his developmental milestones.  There was nothing arising from either information provided by his parents or observations made of him during the assessment process to indicate that X is not functioning on an appropriate level.  He appears to be a child who has been able to form clear and positive attachment relationships in his life.  Consequently, he is not displaying any significant behavioural difficulties.

6. In relation to X’s relationships and attachments to his parents, in paragraph 53 of his Report of 24 August 2011, Mr E states as follows:

   X’s primary attachment is clearly with his mother.  Their interactions strongly suggested that he views her as his primary source of nurture and support.  X also views his father as someone who has a special and distinct place in his life and experience.  Although not the primary and most significant attachment figure for him, there is nevertheless an important and positive attachment relationship between them.  It was apparent that X identified his father as someone who is different to the other people in his experience and one with whom he feels comfortable, and from whom he seeks and obtains emotional nurture.  The nature of their interactions was clearly positive and emotionally warm and supportive. 

7. When discussing the impact on X of relocation to New South Wales, in his Report of 24 August 2011 at paragraph 56, Mr E makes the following observations:

   The relocation of X to NSW at this stage of his development will present a number of significant challenges for this little boy in terms of his ability to develop and maintain an attachment relationship with his father.  X is still in the process of developing the cognitive, emotional and psychological skills required to maintain meaningful connections to those with whom he is not spending regular and significant time and experiences.  His language and concentration skills are also still forming and are currently limited.  Although the writer cannot be definitive about the exact timing, it is generally accepted that by the time children have reached school age, they are better positioned to be able to retain a memory of a parent or significant person even though that person might be absent from their life for whatever period of time.  They are also better able to maintain connections with a person [e.g. via audio and visual mediums] when significant distances are involved, and when mediums other than direct face-to-face contact are required to maintain the relationship.

8. In paragraph 57 of his Report of 24 August 2011, Mr E then notes as follows:

   The adverse effects on X’s relationship with his father of relocating to NSW may be ameliorated however, if he has the opportunity to further consolidate his attachment relationship with his father over a reasonable period of time before he is required to relocate.  Consequently, the writer believes that from a developmental perspective, it would be preferable for X in terms of the quality of his relationship with his father, if any planned relocation was to occur when; he is older [e.g. closer to school age], has had further opportunities to experience his father as a consistent and involved attachment figure in his life [e.g., regular, overnight and extended periods of time], is more developmentally capable of retaining a memory of his father despite being absent from him, and is better positioned to be able to maintain a relationship with his father from a distance.  For these reasons, consideration could be given to Ms Kelso delaying her relocation until X is of school age and therefore more developmentally ready to deal with the challenges of being separate from his father.

9. In paragraph 58 of his Report of 24 August 2011, Mr E indicates that if X was allowed to move to New South Wales with his mother, then it would be very important that he receives positive and consistent support from the mother to:

   … ensure that his relationship with his father is maintained and is at the forefront of his emotional, relational and cognitive ‘world’.

10. It is Mr E’s observation that the mother has indicated that she is prepared to implement the range of suggestions made by Mr E to her to achieve this goal.  Mr E made the following observation at paragraph 58 of his Report of 24 August 2011:

    Ms Kelso appeared willing to support and foster a positive relationship between X and his father, despite the very negative opinions she has of him.

11. In paragraph 60 of his Report of 24 August 2011, Mr E concludes as follows:

    The writer believes that if Ms Kelso and Mr Danner are able to commit themselves to the variety of strategies suggested to them by the writer, as well as implementing regular arrangements for X to spend time with his father, any potential ‘damage’ to X’s attachment relationship with his father could be reasonably contained and minimised.

12. As noted previously in this judgment, Mr E prepared an updated Report dated 17 May 2012 (“the updated Report”).

13. In paragraph 10 of the updated Report, Mr E confirmed the issues he had identified in his first Report and identified the following additional issues:

    (a) Ms Kelso has become more convinced of the need to relocate to NSW in order to better secure X’s financial welfare.  She also remains significantly distressed about the prospect of having to remain in Victoria without the emotional support and financial opportunities she believes exist for her and X in NSW.

    (b)Mr Danner has also become more insistent that X’s relocation to NSW would not be in his son’s best interests and would have significant adverse effects on the quality of their father/son relationship.

    (c)The parental relationship remains strained, although both parents continue to demonstrate a capacity to be civil towards each other and to focus on and cooperate with each other about X’s needs.

    (d) X remains primarily attached to his mother and views her as the source of primary nurture for him.  He also continues to identify his father as being an important attachment figure in his life and a source of emotional comfort.

14. In the updated Report of 17 May 2012, Mr E confirms that the mother continues to feel that remaining in Victoria is neither emotionally or financially viable for her and X and that the father will never be in a position to commit himself to a lifestyle that will enable him to financially provide for herself or for X.

15. Mr E describes the mother as feeling that she has put her life on hold in order to support the father’s career and relationship with X and notes that she remains significantly emotionally distressed by her current circumstances and her inability to implement a lifestyle that she believes will significantly improve the quality of life for herself and her son.

16. In paragraph 16 of the updated Report, Mr E describes the mother as becoming visibly distressed when speaking about the current financial constraints on her and her frustrations in not being able to pursue her plans for employment and financial security for X by relocating to New South Wales.

17. In paragraph 17, of the updated Report Mr E notes that the mother became visibly distressed when discussing how she feels emotionally isolated and about her concerns that the father was trying to wear her down and isolate her from X.  Mr E notes that she made particular reference to the email she read from the father that was sent to his mother and sister in June 2011.

18. In relation to the father, in the updated Report, Mr E notes that the father remains adamantly opposed to X relocating to New South Wales and that the father is insistent that X remain in Victoria so that their relationship and X’s relationship with the extended paternal family can be maintained and consolidated.  Mr E notes that the father became visibly distressed when discussing these issues.

19. In the updated Report, Mr E indicates that he specifically raised the issue of the June 2011 email with the father.  Mr E notes that the father became visibly distressed and explained to him the circumstances in which the email was sent.  Mr E notes that the father expressed disgust at what he had written and apologised for having done so.  It is Mr E’s evidence that during the interviews for the updated Report, the father apologised directly to the mother for the email.

20. Mr E notes that the father is insistent that his actions subsequent to sending the email do not bear out what he had written and that he had never pursued or intended to pursue the actions and intentions contained in that email.  Mr E notes that the father emphasised that the contents of the email reflected:

    a poor scared parent who was unsure he would be able to see X.

21. In paragraph 26 of the updated Report, Mr E sets out the father’s belief that he will not be able to financially afford to travel to northern New South Wales on a regular basis if X were to relocate. 

22. Mr E further notes that the father raises concerns about the mother facilitating non-face-to-face contact between himself and X as well as his concerns that the maternal family might seek to actively undermine his relationship with his son.

23. Mr E also notes that the father made it quite clear that he would not consider relocating to New South Wales himself in the event that X were to move there with his mother. 

24. Under the heading ‘Evaluation/Assessment’, Mr E set out the following observations in paragraphs 42 and 43 of the updated Report:

    42. The writer would refer the Court to previous assessment comments made in relation to when it might be more appropriate for X to relocate to NSW if Court permission was given for him to do so.  Whilst the writer believes that those factors remain relevant to the current assessment, it would nevertheless be important to further comment on the potential for X to be adversely affected by any significant deterioration in his mother’s emotional and psychological well being, arising from her having to remain in Victoria and not being to able to relocate to NSW as soon as possible.

    43. X is a young child whose developmental stage makes him particularly vulnerable and dependent on his attachment figures for the meeting of his emotional and physical needs.  If his primary carer’s emotional and psychological functioning was to become significantly compromised, this could detrimentally impact the quality of his primary attachment relationship, which is fundamental to his own current and future emotional and physical well being.  As previously identified, Ms Kelso’s compromised emotional and psychological well being would ultimately not be in X’s best interests, as it would have a direct effect on the level of emotional and physical care he would be able to receive from his primary caregiver and attachment figure.  If the Court therefore believes that Ms Kelso’s emotional and psychological state would be significantly and adversely affected by her not being able to relocate to NSW with X, it may be prudent to allow her to do so in order to minimise the potential for X’s functioning and well being to become significantly compromised. 

25. In paragraph 48 of the updated Report, under the heading ‘Recommendations’, Mr E sets out his conclusions and possible ways forward in this matter as follows:

    48. The writer would refer the Court to the recommendations outlined in the previous family report.  Based upon information provided during the current assessment, the writer would respectfully make the following recommendations:

    i. That parental responsibility for X in relation to major long term decisions be equally shared between his parents.

    ii. That irrespective of whether X remains in Victoria or relocates to NSW, it would be advisable for the implementation of the Court Orders to be facilitated via a ‘Parenting Orders Program’.  A referral to the ‘Parenting Orders Program’ conducted by ‘CatholicCare’ in (omitted) [(omitted)] would be appropriate, or alternatively a referral could be made to a relevant agency in NSW.

    iii. That in the event the Court allows X to relocate to NSW with his mother, the following arrangements be implemented:

    a.      X should live primarily with his mother.

    b.      Ms Kelso should be financially and practically responsible for organising X to spend time with his father in Melbourne, preferably every month, albeit it is understood that this may only be possible every eight weeks.  Such times could incorporate either single day or overnight time on a weekend, or other times by mutual agreement. 

    c.      Mr Danner should attempt to visit NSW and spend time with X when he is able to financially and practically do so, which could include overnight and day periods.  It is also appreciated however, that Mr Danner’s financial situation may not allow him to travel on a regular basis.

    d.      Ms Kelso should ensure X’s relationship with his father is facilitated via the use of various mediums, including; ‘Skype’, telephone calls, videos, audio tapes, letters, cards, presents, and the use of a ‘life scrapbook’ that focuses on X’s relationship with his father.

    iv. That in the event the Court does not allow X to relocate to NSW with his mother, the following arrangements be implemented:

    a.      X should continue to live with his mother.

    b.      X should be allowed to travel to NSW with his mother for a weekend at least on a monthly basis, if it is financially possible for Ms Kelso to do so.  This would allow X to maintain important relationships with members of the extended maternal family.

    c.      X should continue to spend time with his father at least in accordance with the current weekly arrangements [i.e. a single day on a Monday, single overnights from Wednesday until Thursday, and regular times on a Saturday or Sunday when he is not visiting NSW with his mother].  The day period on the weekend could be extended to a full day [e.g. 10am until 5pm]

    d.      Commencing after his third birthday [i.e. early 2013], consideration could be given to X spending multiple overnights with his father during the week [e.g. Tuesday until Thursday], in addition to a single day period [e.g. a Saturday or a Sunday].

    e.      When X is of school age, consideration could be given to him spending time with his father every alternate weekend [e.g. Friday until Monday], in addition to a single overnight during the alternate week.

1. In his oral evidence, Mr E expanded on the impact on X if he were to relocate.  It is Mr E’s evidence that:

   …at such an early age X really hasn’t fully developed the – the emotional and cognitive hardware, if you like, to – to be able to maintain memories and to maintain relationships with people that he is not seeing on a regular basis.  When children are around the age of four, five, around school age time, they, at that stage, have developed the ability to keep a memory, if you like, in their brain when that person is away from them.  So they are not distressed by absences.  They are more developmentally able to manage telephone calls, Skype, those sorts of things, in order to maintain relationships with people that they are not with. … if the relocation was left until he was a bit older, he would not only be developed mentally in a better position to maintain a relationship with his dad if he is not seeing him on a regular basis, but he would have also had the opportunity to have further consolidated his attachment relationship with father by that time. In response to this evidence, Mr E was asked by the applicant’s Counsel:

   So in your professional opinion the better option to lessen a risk to the child’s cognitive and emotional state would be consistent and regular face to face time?

2. Mr E’s response to this question was as follows:

   Certainly, that’s the ideal situation.  But as I have pointed out in my second report, your Honour, there may be some other factors that the court may think are – in some ways, not overrule those factors but become more important.  And I pointed to the issue of X being adversely affected if the emotional and psychological state of his primary attachment figure becomes so compromised that she – that the mother isn’t able to provide the level of care that this little boy requires. … If the court believes that the mother’s emotional state is – has diminished or deteriorated to the point where she is not going to be able to provide this little boy with the level of care that he needs and because she is his primary attachment figures, then that is going to have a detrimental effect on him as well.  So it’s a bit of balancing – balancing factor. 

3. Mr E expanded on his evidence in relation to the impact on a child if his primary attachment figure’s emotional state is compromised as follows:

   All attachment figures are important for a child but the primary attachment figure for a child is particularly important when they’re so young because it helps a child to develop the emotional, cognitive, psychological foundations for the rest of their life.  Now, if that primary attachment relationship is compromised in any way then that has impacts on those foundational areas which then creates problems for the future development of any child,

4. In his first Report, Mr E indicates that the impact on X’s relationship with his father in the event that he was able to relocate with his mother to northern New South Wales can be ameliorated by the use of Skype, story books and other electronic means.  At the final hearing of the matter, Mr E was asked how effective such communication would be given X’s very young age.

5. It is Mr E’s evidence that whilst such communication would never be a substitute for face-to-face contact, he has had:

   this sort of discussion with other families where a child is not able to have the face to face time with the parent that they obviously need in order to build that relationship.  There are some other methods that parents can use in order to try and reduce the adverse impact of that and there are things like, obviously, the Skype.  There are storybooks that people can use – so, for example, a parent – and I have seen one parent and I think – I’m pretty sure I mentioned this to both mum and dad in this context – parents can develop a sort of a storybook that involves the other parent, that includes pictures of the other parent, story lines, cards, that sort of thing.  So, on a frequent basis a parent can be reading that story to the child about the other parent, to have photos there, so that the concept of that parent is constantly in the mind of the child, even though there’s an absence there. 

6. It is Mr E’s evidence that it will require a great deal of commitment from the mother to ensure his suggested interventions to lessen the impact on X from physical separation from his father in the event of relocation were well implemented with the consistency necessary to make them effective for X.

7. It is Mr E’s evidence that there will also need to be a commitment from the father in ensuring that X maintains his relationship with him in the event of relocation.  It is Mr E’s evidence as follows:

   The father needs to, as I have indicated here, commit himself to seeing the child.  But he can also be sending up tapes of him singing, reading stories.  … the idea of the father taping his voice, reading stories, singing songs to his son can be certainly utilised.  So the impact can be reduced.  And certainly as this boy gets older his capacity to remember and to keep and to retain that memory and to be able to have a relationship with somebody that he is not seeing on a regular basis face to face is going to be improved.

8. Mr E confirms that ideally X should be able to interact regularly with both his parents; but that in this matter we are not dealing with an ideal situation.  At the conclusion of his evidence, I asked Mr E to confirm that if the Court formed the view that the impact on the mother of being required to stay in Melbourne would so impact on her emotional and psychological functioning that it would adversely undermine or compromise her capacity to care for X, then he would support an order allowing her to relocate with X to New South Wales.  Mr E confirmed that to be his recommendation.

9. Noting that there was no independent psychiatric assessment of the mother, I asked Mr E for any feedback he could give the Court as to his impression of the genuineness of the distress that the mother was showing and its impact on her parenting.

10. Whilst Mr E quite properly indicated that he was not a psychiatrist or a psychologist and was not in a position to provide a formal assessment of the mother, he advised the Court as follows:

    Based on my observations and her comments, first of all I would say that the impression I had was that whatever level of distress and concern that she exhibited was genuine as opposed to fabricated or acted out.  Her level of distress and concern was significant in the first assessment and probably greater in the second assessment.  She was – at times she became quite teary, quite emotionally distressed not only about the nature of her – the living arrangements that she has at the moment and they seem to be quite cramped, but also the fact that she feels thwarted about not being able to go to New South Wales, not only where her family is supportive, but also where she feels that she can legitimately provide not only for herself but for X, and particularly when she feels – when she has formed the belief that the father is never really going to be able to be financially responsible … To me she seemed to be genuine in her belief – subjective belief about that, and her level of subjective distress certainly was significant and probably greater the second time that I had seen her … she had a very strong focus of wanting to be able to provide some financial future for her son and she just felt that that wasn’t occurring, and she is restricted and she described the cramped conditions of where she is … Whether she is going to have an emotional breakdown or whether she is going to fall apart, I can’t make a comment on that.

Legal approach

1. As noted previously in this judgment, this case relates to the mother’s wish to relocate with the parties’ son X from Melbourne to northern New South Wales.

2. Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear however that this is not so and that a relocation matter is to be determined in the same way that all parenting matters, that is by following the legislative framework prescribed under the Act to determine what order is in a child’s best interests.

3. In Taylor v Barker (2007) 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:

   when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002) 211 CLR 238 ; 191 ALR 289 ; 29 Fam LR 74 ; (2002) FLC 93-112 ; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471 ; (2005) FLC 93-224 ; [2005] FamCA 458.

4. In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:

   A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.

   A relocation case falls to be determined like any other parenting case.[2]

   [2] At paragraph 31.

Best interests of the child

1. Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):

   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. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Presumption of equal shared parental responsibility

1. In this matter the parties propose that they have equal shared parental responsibility for X. 

2. Both parties report difficulty in communicating with each other.  This is more so when the issue of the mother’s relocation is raised.

3. However, the parties manage to deal with the day-to-day living arrangements for X and ensure they interact civilly and in a child focussed way when in X’s presence. 

4. In both Family Reports, Mr E sets out that both parents spoke of a “continuing problematic parental relationship” but confirms that he observed that generally the parties were respectful towards each other and able to focus on X and what was important for him. 

5. Mr E also notes that both parties were prepared to consider counselling to assist them to develop a more workable parental relationship.  Mr E supports an order for equal shared parental responsibility.

6. Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, though that presumption may be rebutted where there is child abuse and/or family violence or it is not in the child’s best interests for that presumption to apply. In this matter, I am of the view that it is in X’s best interests that the parties have equal shared parental responsibility. Whilst acknowledging their difficulties at times to communicate effectively with each other, to their credit the parties have, in the main, been able to focus on X and ensure their focus is on what is important for him. Accordingly, an order will be made in these terms.

Consideration of equal time or substantial and significant time.

1. Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. Section 65DAA(1) provides as follows:

   1.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.

2. Sections 65DAA(2) and (3) of the Act provide as follows:

   2.If:

   (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; 

   the court must:

   (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.

   3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i)     days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)         the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

3. Section 65DAA(5) of the Act provides as follows:

   5.In 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, the court must have regard to:

   (a)how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the court considers relevant.

4. In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between section 60CA, section 61DA(1) and section 65DAA of the Act.

5. In MRR v GR (supra), the High Court held at paragraph 9:

   Each of subss (1)(b) and (2)(d) of s 65DAA require 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. Subsection (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 subss (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”.

6. The High Court then held at paragraph 13:

   Section 65DAA(1) is expressed in imperative terms. It 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 (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as 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 power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

7. The High Court further held at paragraph 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. Since such parenting would only be possible in this case if both parents remained in (omitted), Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

8. Thus, the Court must consider whether it is in the child’s best interests and also whether it is reasonably practicable for the child to spend equal or significant and substantial time with their parents.

9. In this matter, the father is seeking orders in the following terms:

   Should the mother not be permitted to relocate:

   (a) That the parties have equal shared parental responsibility for the child.

   (b)    That the child live with the mother.

   (c)That until the child turns 3, he spend time with the father as follows:

   (i)      Each Monday from 9.00am until 4.00pm;

   (ii) Each Wednesday from 12.00pm until Thursday 12.00pm;

   (iii)   Each Saturday, from 10.00am until 5.00pm;

   (iv)That the mother be permitted to travel to the (omitted) area every 6 weeks from 12.00pm Thursday until 9.00am Monday with the child.

   (d)Upon the child turning 3, he spend time with the father as follows:

   (i)      Each Tuesday at 12.00pm until Thursday at 12.00pm;

   (ii)    Each Sunday from 12.00pm until 6.00pm.

   (iii)   as per paragraph c(iv)

   (iv)That the mother be permitted to travel to the (omitted) area for one week during Christmas period at a time as agreed between the parties and in default of agreement as per the mother’s proposal in paragraph 15(c).

   (e)Upon the child commencing school, he spend time with the father as follows:

   (i)Each alternate weekend on the first of each alternating week from the conclusion of school on Tuesday, to the commencement of school on Friday, and on the other alternate weekend from the conclusion of school on Wednesday until the commencement of school on Thursday, and from the conclusion of school on Friday until the commencement of school on Monday, or Tuesday if a non-school day.

   (ii) For half of all school holidays as agreed and failing agreement the second half.

   (f)That X otherwise spend such further and other time with the parties as agreed between them, including special occasions.

   Should the mother be permitted to relocate:

   (g) That the parties have equal shared parental responsibility for the child.

   (h)That the child live with the mother.

   (i) That provided the father give the mother 28 days written notice of his intention to travel, including contact telephone numbers and addresses where the child will be staying, he spend time with X:

   (i)Until he commences school for two nights a week as agreed from 12.00pm, until 12.00pm the following day;

   (ii)Upon commencing school as above including for half of all school holidays periods by agreement and failing agreement the first half.

   (iii)By Skype for a minimum of 20 minutes on three occasions a week as ordered by this Honourable Court.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)        any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. As set out in this judgment, in the event that the mother is permitted to relocate with X to New South Wales, there would be a significant impact on X because of the geographical distance between him and his father and the extended paternal family.

2. X will experience a sense of loss arising from his inability to have regular time with his father and paternal family.  This loss cannot be completely ameliorated, even with the use of regular electronic communication with his father and the paternal family or with the use of the various strategies suggested by Mr E.

3. The distress the father and the extended paternal family will experience if X were to move to New South Wales will be significant as X is a much adored son, grandson and nephew.  There is no doubt that they will struggle to come to terms with the forced separation that will result from X’s relocation.

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

1. This factor is of real significance in this case.  There is considerable distance between Melbourne and (omitted).  To drive from Melbourne to the (omitted) region safely requires at least one overnight stay. 

2. Whilst (omitted) can be easily reached via regular flights to (omitted), or Brisbane; neither party has significant financial resources.

3. The father estimated that the cost to him to travel to (omitted) to spend time with X would be approximately $500.00 to $700.00 when airfares, accommodation and car hire are factored in.  It is his evidence that it would take him in excess of 12 months to save such an amount.

4. It is therefore the father’s evidence that he would have very limited capacity to be able to travel to northern New South Wales to spend any time with X as he would not be able to afford to do so with any regularity.

5. The mother proposes to travel to Melbourne with X every month until he reaches school age to enable X to spend time with his father.  It is her evidence that she will be able to afford to this regular travel to Melbourne as her financial circumstances will be greatly improved if she is able to move to northern New South Wales.  It is the mother’s evidence that she has a number of genuine employment possibilities in the region and her living costs will be reduced as she will be living with her mother and step-father.

6. The Court notes that since orders were made in this matter in September 2011, the mother has been travelling to northern New South Wales with X every three weeks.  The Court accepts however that the maternal grandmother has been assisting the mother with the cost of this regular travel. 

Section 60CC(3)(f) the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. Both X’s parents have provided for X’s emotional and intellectual needs to date. 

2. There is however a real concern as to the mother’s capacity to continue to provide for X’s emotional and intellectual needs into the future in the event that she is required to remain living in Melbourne.

3. The mother is genuinely and deeply unhappy in having to remain in Melbourne where she feels unsupported, isolated and financially disadvantaged.

4. It is the mother’s evidence that she does not believe that she will be able to financially, practically and emotionally support X in Melbourne and that her life has been on hold since the father reneged on his agreement that she and X be able to relocate to northern New South Wales in April 2011.

5. It is the mother’s evidence that in circumstances where the father will never provide financial support for X because of his chosen career path, that responsibility will fall squarely on her shoulders.  It is her evidence that absent the family support available to her in northern New South Wales, her capacity to balance work and child care is limited in Melbourne and this impacts on her ability to provide X with the future she wants him to have.

6. The mother described herself and X living in a cramped one bedroom apartment in (omitted) and expressed frustration that any improvements in their living situation could not be achieved given the practical and financial restraints that living in Melbourne imposed.

7. It is apparent from the mother’s evidence that her level of distress in relation to her current circumstances is severe and genuine and that she feels helpless and isolated. 

8. Whilst the paternal family has made genuine offers of assistance to the mother, the distrust and distress felt by the mother because of the emails she has read as well as the nature of her relationship with the father means that she is not able to accept those offers of assistance.

9. In his Family Reports, Mr E comments on the mother’s level of distress and observes it to have increased in the time between his first Report and second Report. 

10. As set out earlier in this judgment, Mr E expresses real concern about the potential for X to be adversely affected by any significant deterioration in his mother’s emotional and psychological well-being arising from her having to remain in Victoria.

11. In paragraph 43 of his Report of 17 May 2012, Mr E comments as follows:

    X is a young child whose developmental stage makes him particularly vulnerable and dependent on his attachment figures for the meeting of his emotional and physical needs.  If his primary carer’s emotional and psychological functioning was to become significantly compromised, this could detrimentally impact the quality of his primary attachment relationship, which is fundamental to his own current and future emotional and physical well being.  As previously identified, Ms Kelso’s compromised emotional and psychological well being would ultimately not be in X’s best interests, as it would have a direct effect on the level of emotional and physical care he would be able to receive from his primary caregiver and attachment figure.  If the Court therefore believes that Ms Kelso’s emotional and psychological state would be significantly and adversely affected by her not being able to relocate to NSW with X, it may be prudent to allow her to do so in order to minimise the potential for X’s functioning and well being to become significantly compromised. 

12. The mother placed no independent psychiatric or psychological evidence before the Court in relation to her current level of psychological functioning or its impact on her parental capacity.

13. It is her evidence that she had attended upon Dr E on two or three occasions in late 2011 but that she had been unable to afford to continue with Dr E.  It is her evidence that in or around November 2011, she accessed counselling through a community health centre and that she continues to obtain assistance from this counsellor to this day. 

14. Whilst Mr E is not a psychologist, in response to specific questions from me in relation to his assessment of the mother’s level of distress and emotional functioning, it is his evidence that the distress and concern the mother exhibits is genuine and was greater the second time he saw her than on the first occasion. 

15. It is apparent from Mr E’s evidence that he holds genuine concerns as to the impact on the mother’s parenting capacity arising from the increasing levels of distress exhibited by her.

16. It is Mr E’s recommendation that if the Court formed the view that the emotional and psychological impact on the mother’s functioning was at a level that it impacted on her capacity to care for X, then the risk to X’s well-being in this circumstance outweighed the risk to him of a diminution of the relationship with his father in the event that he were to relocate.

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

1. The father in this matter is a (omitted) who is a member of a number of bands.  The father’s bands tour Australia from time to time.

2. There is some suggestion that in the future the father may tour overseas to promote his bands.

3. The father is not currently receiving an income from his chosen vocation and at this time he is dependent on a Newstart Allowance. 

4. These restricted financial circumstances impact on his capacity to be able to provide a high level of financial support for his son.  The Court notes that, to his credit, the father currently pays $210.00 per month in child support for X in circumstances where he has a nil assessment from the Child Support Agency.

5. The financial constraints of his chosen profession also impact on his ability and capacity to spend regular time with X in the event that X and his mother are permitted to relocate to northern New South Wales.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. This section is not relevant.

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

1. Both parties in this matter are loving, responsible and caring parents to X.

2. Despite their interpersonal difficulties, the parties have since separation been able to generally agree on X’s living arrangements whereby he has been in his mother’s primary care and has spent regular and ongoing time with his father.

3. It is the father’s evidence that he prioritises his responsibilities to X above his professional commitments and has instructed his manager to organise his performance commitments around the times that he spends with his son.

4. The mother is very much the hands on primary carer of young X and is a devoted and loving mother.

5. X is described by his parents, extended family and Mr E as a delightful little boy who is meeting all his developmental milestones.  That can only be a reflection of the appropriate and positive parenting he has received to date.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. The mother made reference in her evidence to there being instances of verbal abuse between herself and the father during the course of the relationship.  She also deposes in her affidavit material to there being an instance of pushing and shoving between herself and the father around the time of separation.

2. These incidences seem very much related to the volatility in the parental relationship and the circumstances surrounding their separation.  Neither party reports that these behaviours are an ongoing issue.

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:

(i)         the order is a final order; or

(ii)    the making of the order was contested by a person

1. This section is not relevant.

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

1. Were the mother a Melbourne girl with her family and support base centred in Melbourne, I am of the view that this family would not be before the Court.

2. As noted, X is a much loved and adored little boy, who has the ongoing loving involvement of his mother, father and their extended families.

3. However, the mother is from northern New South Wales.  She is desperate to return with X to her home base where she believes she will have the practical, financial and emotional base to ensure that she is able to give her son the best possible future in circumstances where she believes this burden will fall primarily with her given that the father’s chosen profession does not provide him with an income stream that would enable him to provide a high level of regular financial support for his son.

4. Whether the mother is permitted to relocate or remain in Melbourne, both parties have shown a willingness to comply with a range of arrangements put in place for X’s care and I am of the view that the only circumstances in which this matter would return to Court would be if the parties failed to comply with the arrangements put in place for X’s time with each of his parents.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. Both parties acknowledge real difficulty in their ability to communicate with each other in relation to their parenting of X.  This is particularly so whilst the very vexed issue of whether the mother can relocate with X remains live.

2. To their credit however the parties are very much focussed on X and his best interests and express a willingness to engage in counselling to work towards an improvement in their communication.

Conclusion

1. This matter involves a decision as to whether a much loved two and a half year old little boy, X, be permitted to relocate with his mother to northern New South Wales.

2. Matters of relocation are always difficult to determine and this matter is no exception.

3. The father strenuously resists orders being made that would permit X to move from Melbourne because of the impact that would have on their close and loving relationship which is developing and consolidating as a result of the regular time that X is able to spend with his father whilst living in Melbourne.

4. It is submitted on behalf of the father that given X’s very young age and stage of development, he does not have the cognitive or emotional capacity to maintain his relationship with his father without regular and consistent face-to-face interaction. 

5. It is submitted on behalf of the father that if the mother is permitted to relocate with X, his ability to have an ongoing and meaningful relationship with his father will be irreparably damaged and that such an order cannot be seen to be in X’s best interests.

6. It is submitted on behalf of the father that this is even more so in this matter given the father’s financial circumstances prevent him from being able to travel regularly to New South Wales to spend time with X. 

7. It is further submitted on behalf of the father that the mother does not and will not willingly encourage his relationship with X and that their current level of interaction is only as a direct result of this Court’s intervention.

8. The father is genuinely concerned that the negative views held by the maternal family and in particular the maternal grandmother, with whom X will be living if permitted to relocate to New South Wales, will further undermine X’s relationship with him.

9. It is therefore the father’s proposal that X and the mother remain living in Melbourne and that there be orders put in place so that his time with X is gradually increased in an age appropriate way so that by the time X achieves school age, the parents effectively have a shared care arrangement. 

10. The mother is seeking an order of this Court that she be permitted to relocate with X to northern New South Wales where she will be able to financially and emotionally provide for X with the assistance of her family.

11. Whilst the mother acknowledges that such a move must impact on X’s relationship with his father, that impact can be greatly ameliorated by the effort and commitment she is prepared to make to ensure that the father continues to remain a constant and important person in X’s life.

12. The mother proposes that, until X starts school, she travel with X to Melbourne for four days every month at her expense.  The mother proposes that during this period X spend two nights with his father as well as time during the day.

13. The mother is also committed to putting in place the strategies recommended by the Report Writer Mr E for assisting X’s ongoing relationship with his father, including regular Skype communication, telephone communication, the preparation and reading of story books that involve pictures and stories of the father, playing X recordings of his father singing and reading books to him, having photographs of his father around her home and facilitating time with X in northern New South Wales on all occasions when the father is able to travel to that area to spend time with X.

14. It is submitted on behalf of the mother that the psychological and emotional impact on her of having to remain in Melbourne where she is financially and emotionally isolated is impacting on her capacity to properly care for X.

15. It is submitted on behalf of the mother that as X’s primary attachment figure and caregiver, any diminution in the mother’s capacity to properly care for X will detrimentally impact on X such that his current and future emotional and physical well-being will be compromised. 

16. It is therefore submitted on behalf of the mother that it is in X’s best interests that the mother and X be permitted to relocate to northern New South Wales.

17. There is no doubt that if permitted to relocate to northern New South Wales, X’s relationship with his father will be impacted.  X has spent regular time with his father since the parties separated and currently sees his father two or three times each week.  Theirs is a close and loving relationship which Mr E described in his evidence as being “quite delightful”.  He describes observing the father and X reading and singing together and their obvious enjoyment in each other’s company.

18. If X were to move to northern New South Wales with his mother, X will experience a real sense of loss.  He will no longer have the frequent face-to-face involvement with his father and extended paternal family.  Whilst X’s sense of loss can be ameliorated to some extant through monthly visits to Melbourne and regular electronic communication, such sense of loss will be very real for X.

19. This impact on X’s relationship with his father will be exacerbated by X’s very young age.  His current level of cognitive and emotional maturity makes his capacity to maintain distant relationships all the more difficult.

20. The Report Writer Mr E is quite clear in his evidence that if the Court is of the view that the mother’s level of emotional and psychological distress in not being able to relocate is such that it impacts upon her capacity to care for X, then it is in X’s best interest that he be permitted to relocate, even in circumstances where this will have a detrimental impact on his relationship with his father.

21. Mr E in his viva voce evidence spoke of the options facing the Court as “a balancing of the risks” to X.  It is his evidence that the risk to X’s well-being if his primary attachment figure’s capacity to care for him is adversely impacted is greater than the risk to him of a diminution of the relationship between himself and his father. 

22. It is Mr E’s evidence that the risk to X of a diminution in his relationship with his father is a ‘manageable’ risk.  This is particularly so in circumstances where he is satisfied that the mother will do all things required of her to minimise the impact on X of the change to the relationship with his father caused by his move.

23. There is no doubt that the ideal outcome for this little boy is to have two fully functioning happy and committed parents living in close geographical proximity to each other so that he can continue to be well cared for by his mother who is his primary attachment figure and continue to spend substantial and significant time with his father to consolidate his loving and important relationship with him.

1. I am satisfied however that this is not the outcome that is achievable for X in this matter.

2. If required to remain in Melbourne, I am of the view that the mother’s distress and unhappiness will continue to escalate such that her parenting capacity will be quite severely compromised. 

3. Mr E reports a measurable increase in the level of the mother’s distress between the preparation of his first and second Reports. 

4. It is apparent from the mother’s evidence that she is struggling in Melbourne.  Her distress and unhappiness was palpable whilst giving her evidence and I am satisfied that her distress and her struggles to find a way forward are genuine.  It is the mother’s evidence that she can see no way forward in terms of finding employment, properly engaging in her community or finding the level of emotional and practical support that will enable her to move forward with her life.

5. The mother has not engaged in any mother’s group, has been unable to find childcare and has been unable to find any employment opportunities that accommodate her obligations to care for X.  The mother has rejected the genuine offers of assistance from the extended paternal family as she believes they do not support her in her role as X’s mother and primary carer as a result of the email messages intercepted by her.

6. In contrast, she has a myriad of plans and realistic expectations for employment in northern New South Wales, a supporting family including ready made accommodation in her mother and step-father’s large home in (omitted) and a support network which will enable her to pursue all these possibilities.

7. I also accept the mother’s evidence that when she became pregnant with X, it was her expectation at that time that she and the father would move to northern New South Wales so that she could have family support whilst he pursued his professional career.  I further accept the mother’s evidence that she believes there was agreement reached at the time of separation that she would be able to relocate back to New South Wales by mid-2011 and that what she believes to be the father’s retraction of that agreement has further exacerbated her sense of isolation and despair.

8. Having considered the evidence of the parties and Mr E, I am of the view that it is in X’s best interests that the mother be permitted to relocate to northern New South Wales with X.

9. As noted, the ideal outcome for X is that he be able to live primarily in the mother’s care and spend significant and substantial time with the father.  This however is not reasonably practicable given the determination that relocation is to be allowed.

10. I am very much aware that this decision will devastate the father and the paternal family and that they will be extraordinarily distressed and disappointed in the outcome.

11. Whilst much has been written in this judgment about the importance of the mother’s commitment to ensuring X remains connected with his father whilst in New South Wales, it is going to be equally important for X that his father and the extended paternal family put aside their distress and disappointment in this decision and make sure that they do everything possible to ensure that they continue to be a vitally important and loving presence in X’s life into the future.

12. That the father is a (omitted) can be of real advantage in this circumstance, as he has the ability and skills to make recordings and DVDs of him reading and singing so that X will be able to watch and listen to his father at all times.

13. Similarly, whilst appreciating the financial difficulties and constraints that the father suffers under, it will be important that where possible he takes every opportunity to visit X in New South Wales so that in addition to the time that X spends with him in Melbourne, X has the opportunity to share his New South Wales world with his father.

14. It will also be vitally important for X that his parents be able to communicate with each other in relation to their son and to work cooperatively in making the important decisions in relation to X’s life now and into the future.  This will be more so given the geographical distance between them.

15. Both parties expressed a willingness to the Court to engage in counselling to assist them in this regard and whilst no orders will be made that they do so, it is strongly recommended that they follow through on this commitment in the best interests of their son.

16. Having determined that it is in X’s best interests that the mother is permitted to relocate to northern New South Wales with X, I must consider what orders are best made to ensure X maintains his meaningful relationship with the father.

17. The orders proposed by the mother in relation to X spending time with the father until school age are, I believe, most appropriate and I will make orders in those terms save that Skype or electronic communication shall be three times per week and when X turns four years of age, he will spend all three nights with his father in Melbourne each week.

18. The mother’s proposal for the father’s time with X when he commences school is predicated on the father being able to travel regularly to northern New South Wales.  It is the parties’ evidence that the father has never earned a regular income.  This lack of financial security was a major source of conflict between the parties during their relationship.  Accordingly, the orders proposed by the mother for X’s time with his father once he commences school will not, I believe, ensure X spends regular time with his father and the extended paternal family. 

19. Accordingly, I intend to make orders that will provide for X to spend school holidays and one weekend in each school term in Melbourne.  Further, where possible, that weekend is to coincide with a long weekend. 

20. The orders for the time X spends with the father once he commences school should be viewed by the parties as the bare minimum.  It is my hope that the parties will ensure that X’s time with his father is maximised and that they both do everything they can to ensure that X has the opportunity to spend regular and consistent time with the father, both in Melbourne and in northern New South Wales.

I certify that the preceding three hundred and twenty eight (328) paragraphs are a true copy of the reasons for judgment of Bender FM

Date:  10 August 2012