Eltis and Eltis

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELTIS & ELTIS

[2018] FCCA 190

Catchwords:
FAMILY LAW – Parenting – relocation – two good parents – mother desperately unhappy in (omitted) NSW and wishing to return to Brisbane, her home town – father unwilling and/or unable to move from (omitted), NSW his home town – where the mother has always been the child’s primary carer and where it is in the child’s best interests to live with her mother in Brisbane.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

AMS & AIF (1999) 199 CLR 160
Godfrey & Sanders [2007] FamCA 102
Mazorski & Albright [2007] 37FamLR
MRR & GR (2010) 42 Fam LR 531
U & U [2002] 211 CLR 238

Applicant:

MS ELTIS

Respondent:

MR ELTIS

File Number:

CRC 293 of 2014

Judgment of:

Judge Terry

Hearing dates:

19 & 20 December 2017

Date of Last Submission:

20 December 2017

Delivered at:

Newcastle

Delivered on:

10 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr Bryant

Solicitors for the Applicant:

Slater & Gordon

Counsel for the Respondent:

Mr Betts

Solicitors for the Respondent:

Fishburn Watson & O’Brien

ORDERS

All existing parenting orders concerning X born (omitted) 2010 (“the child”) are discharged.
The mother and the father shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with the father as follows:
(a)For one half of the Queensland Autumn, Winter and Spring school holidays with the parents to agree no later than 28 days prior to commencement of each school holidays which half the child shall spend with each of them and in reaching that agreement they shall take into account the desirability of the child spending time with the father during a week when the father’s partner’s children are also on school holidays and in their mothers care.
(b)For two periods of 2 weeks during the Queensland Summer school holidays with the parents to agree on those periods not less than 3 months prior to the commencement of the holidays and with the father’s time with the child to include Christmas Day in 2018 and each alternate year thereafter.
(c)For one weekend in each school term in the (omitted) area as agreed between the parties NOTING THAT the parents are urged to arrange for that time to occur on a long weekend to maximise the child’s time with the father and his family.
(d)At times to be agreed if the father is in the Brisbane area or the mother is in the (omitted) area.
(e)At such additional or alternate times as may be agreed between the parties.
Changeover between the parties for the purposes of orders 4(a), (b) and (c) shall take place at McDonalds (omitted) unless the mother arranges for the child to fly from Brisbane to (omitted) and return in which case the mother shall pay the cost of the flights and shall deliver the child to and collect her from Brisbane Airport and the father shall collect the child from and deliver her to (omitted) Airport.
If on any occasion the child is to spend time with the father the mother intends the child to fly to and from (omitted) she shall give the father at least 14 days’ notice in writing of that intention.
Changeover between the parties for the purposes of orders 4(d) – (e) shall take place at a location agreed between the parties.
The mother shall do all acts and things necessary to facilitate Skype or telephone communication between the child and the father on three occasions each week at times agreed between the parties.
Each party is to keep the other parent advised of any significant medical appointments arranged for the child.
Each parent shall inform the other parent as soon as reasonably practicable in the event of the child while in their care being involved in an accident or medical emergency requiring attendance at hospital or being diagnosed with a serious illness.
Each parent may obtain form the child’s school copies of school reports, order forms for school photographs, newsletters and other information normally provided to parents and each parent may attend all school events normally attended by parents.
Each parent shall keep the other advised of their residential address, mobile and landline telephone number and email address and advise the other of any changes to these details within 7 days of the change occurring.
If the father travels to the place where the child is living he may spend time with the child on her birthday:
(a)Should the birthday fall on a non-school day or should the father prefer to spend time with the child on the weekend immediately before or immediately after her birthday, for 5 hours either on her birthday or on one weekend day of his choosing if her birthday does not fall on the weekend from 8.00am to 1.00pm or from 1.00pm to 6.00pm. The father is to nominate one of those time slots and if the child’s birthday does not fall on the weekend the day which he proposes to spend time with the child in writing to the mother no later than 28 days prior to the child’s birthday.
(b)Should the birthday fall on a school day and the father elects to spend time with the child on her birthday rather than a weekend day for 2 hours from 5.00pm to 7.00pm.
NOTING THAT the mother’s application was to relocate to Brisbane with the child, the mother is restrained and an injunction is granted restraining her from relocating the child’s place of residence to a place more than 450km from (omitted) NSW without the consent of the father or an order of the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

CRC 293 of 2014

MS ELTIS

Applicant

And

MR ELTIS

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I must make a decision about parenting arrangements for X, who will be eight in about a months’ time.
X and each of the parents currently live in (omitted), NSW. The mother’s application is that X should live with her in Brisbane and spend defined time with the father during school terms and school holidays. She says that she intends to move to Brisbane whether she can take X or not, but it is her view that it is in X’s best interests to live with her.
The father’s first preference throughout the proceedings has been for the child to live in a week-about arrangement which would require both parties to live in or near (omitted), NSW. He says however that if the mother moves to Brisbane X should stay with him and spend time with the mother on some weekends during school terms and during the school holidays.
There are thus three proposals on the table: the mother’s proposal, that X live with her in Brisbane; the father’s proposal that the child live in a week-about arrangement which, as he is not prepared to move, would require the mother to remain in (omitted); and the father’s proposal that if the mother moves X lives with him.
As is so often the case in relocation matters the parties are both good parents, and as is also so often the case there is no ideal outcome for the child.
If X moves to Brisbane she will remain living with the mother who has been her primary carer throughout her life but she will have to change schools and she will see her father, the other members of his family and his partner and his partner’s children far less frequently than she does now and it will involve quite a bit of travel for her.
If X remains in (omitted) with the father and the mother moves, she will have to adjust to seeing her mother far less frequently than she does now, also involving travel. She will also have to adjust to a change of household but she will not have to adjust to a change of school and she will spend more time than she does at present with her father, his family and his partner and her children.
If the mother decides to remain in (omitted) if X is prevented from relocating, then X can either continue to live in the current five/nine arrangement or live in a seven/seven arrangement as the father proposes. However she will be living with a desperately unhappy mother and the relationship between the parents and between the mother and the father’s partner, which is very touchy at the moment, is likely to deteriorate even further and unless the mother adjusts to her disappointment, the outcome for X will be very poor.
The father’s counsel was highly critical of the mother for changing her position late in the proceedings and informing the Court that if she could not take X to Brisbane she would relocate to Brisbane on her own leaving X in (omitted). He suggested that this proposal had the effect of holding the Court to ransom.
I do not agree with that submission and I do not share the father’s counsel’s view that the fact that the mother made that proposal is reason to be critical of the mother.
In U & U, a High Court decision, Gaudron J recognised the difficulties faced by someone in the mother’s position and she said as follows:
Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive, and render the question whether a mother would prefer to move to another state or country, or maintain a close relationship with her child, one that will almost inevitably disadvantage her forensically. A mother who opts for relocation, in preference to maintaining a close bond with her child, runs the risk that she will be seen as selfishly preferring her own interests to those of her child. A mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal is separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was clear in AMS & AIF.[1]
[1] U & U [2002] 211 CLR 238; AMS & AIF [1999] 199 CLR 160
I will consider the father’s proposal that the child live in a week-about shared care arrangement in (omitted) as a separate proposal because the father has put it on the table but I am also required to give proper consideration to the two other proposals, namely that the child lives with the mother in Brisbane or with the father in (omitted), and I do not feel in any way constrained or held to ransom by the mother’s statement that she will relocate without the child.

The evidence

The mother relied on her trial affidavit and an additional affidavit filed on 7 December 2017 and also on the affidavits of the maternal grandmother Ms C and a consultant psychiatrist, Dr D.
The father gave evidence in his case, as did his partner Ms L and the paternal grandmother Ms R.
A family report was prepared by Ms J, an experienced family consultant. Neither party sought to cross-examine her and her report went in as unchallenged evidence.
The mother and father and Dr D were cross-examined.

Background

The mother is 38 and the father 40. They met in Brisbane in 2001 and commenced living together shortly thereafter.
The father was in the (employer omitted) and in 2002 the parties moved to Darwin when he was deployed there. They lived in Darwin for about a year before returning to Brisbane and the father subsequently left the (employer omitted).
The parties remained in Brisbane until sometime in 2009.
In 2008 the parties made a decision that they would move to (omitted) and they gave differing reasons for why they decided to do so. The mother said that she agreed to the move because the father had been seriously injured in a motorbike accident and she thought that he would best recuperate there. The father said that the parties decided that (omitted) was a good place to bring up a child, but it does not really matter why they decided to move there. The fact is that they did decide to move there and at different times during 2009 each of them moved to (omitted) and they each obtained employment there.
The parties’ daughter X was born on (omitted) 2010. The mother was her primary carer after her birth and she took maternity leave.
In or about (omitted) 2010 – and I pause to add that the mother said it was (omitted) and I think the father said it was (omitted) but the maternal grandmother said it was when X was nine months old - in any event at some point in 2010 the maternal grandparents moved to (omitted) for the purpose of supporting the mother following X’s birth.
The parties separated on 4 May 2012 when X was just over two. I am not going to discuss the reasons they each gave for the separation. It is not relevant at this stage of the matter.
In July 2012 the mother’s parents declared that they were moving back to Brisbane and also at around this time the mother formed a relationship with Mr A who was from Brisbane.
The mother asked the father if he would consent to her moving to Brisbane with X. He agreed to do so and on 13 September 2012, final parenting orders were made by consent which provided for the parties to have equal shared parental responsibility and for X to live with the mother in Brisbane.
The orders provided for the father to spend time with the child each alternate weekend from Friday to Sunday and for four hours each Monday and Wednesday afternoon while the mother remained in (omitted). Once she moved the time was to be each alternate weekend with handovers in Brisbane, for two one-week blocks with handovers also in Brisbane and on three occasions each year in (omitted) with the mother to do the travelling.
On or about 1 March 2013 the mother and the maternal grandparents left (omitted) and commenced living in Brisbane.
After the mother moved to Brisbane the father, to his credit, availed himself of every opportunity to spend time with X which involved quite a bit of travelling for him. He went up to Brisbane every alternate weekend and obtained accommodation there so that he could spend time with his daughter.
In January 2014 the mother decided to return to (omitted). The explanation she gave was that she had been in a contract position in Brisbane and could not obtain a further contract position there. She could have left the (employer omitted) but as she explained in cross-examination – convincingly in my view – she “owned” a (employer omitted) position in (omitted) and rather than lose that position she decided to return to (omitted).
After the mother returned to (omitted) she worked three days a week in her (omitted) job and she also did some (employment omitted).
Upon the mother’s return to (omitted) X saw the father in accordance with the existing orders, which provided for him to see her each alternate weekend from Friday to Sunday and each Monday and Wednesday afternoon for four hours.
The father’s counsel was highly critical of the mother, and indeed the father was highly critical of her in his affidavit, for not agreeing to something more extensive once she was back in (omitted), but the time provided for in the 2012 Court orders was not unreasonable given X’s age and there was no evidence that the father asked for anything more besides time on his rostered day off each alternate Friday. The mother said that she frequently agreed that he could take X to school on that day and that was all he asked for.
The father made a general assertion that he consistently asked for “more time” but he did not provide any evidence of what he allegedly asked for and I cannot find that the mother taking the position that the time in the consent orders should apply meant that she was wanting to unreasonably restrict the father’s relationship with X, not given the amount of time provided for in the consent orders.
In (omitted) 2014 the mother formed a relationship with Mr M, an (occupation omitted) who was living in (omitted).
In 2015 the father formed a relationship with Ms L who is his current partner. Ms L lives in (omitted) and has two children, A and B.
In May 2015 Mr M obtained a position in Canberra. The mother approached the father about relocating to Canberra with Mr M. He would not agree to that and in September 2015 she filed an application seeking to relocate to Brisbane. She expressed hope, at the time, that Mr M would be able to join her in Brisbane.
Something was attempted to be made at trial about the mother’s change of position as to where she wished to relocate but frankly I cannot understand what the problem is with that.
On 18 January 2016, the father filed a response in which he sought an order that the child live in a week about shared care arrangement in (omitted).
In May 2016 a family report was prepared by Ms J. Ms J did not make a recommendation one way or the other about parenting arrangements for X.
In June 2016 an interim hearing was conducted which resulted in the Judge Middleton making an order that X spend time with her father each alternate week from Wednesday to Sunday instead of each alternate weekend from Friday to Sunday. The mother had proposed each alternate week from Thursday to Sunday.
It is important to note, because of an issue which was raised during the trial about a birthday party, that the only order that Judge Middleton made on 30 June 2016 was that the child spend time with her father from after school on Wednesday until 5.00pm on Sunday each alternate week. He did not discharge the existing interim orders and I presume, and it is reasonable to presume, that they continued to apply save for the provision about the weekend time, and the 2012 interim orders make provision for each parent to spend time with the child on her birthday if the birthday falls on a non-school day.
Regrettably due to all the changes that took place in the management of the Coffs Harbour Circuit in 2016 and 2017, the matter was not reached for hearing on Circuit and I finally conducted a hearing in Newcastle in December 2017.

The parties’ proposals

The mother proposes to live in Brisbane with X. She has selected a school in case she is able to relocate. She cannot be criticised for that and she indicated that she was willing to discuss the issue with the father if her application was successful and he had a problem with her choice. She provided evidence that she could obtain a transfer in relation to her (employment omitted) position so that she will have a permanent (employment omitted) position in Brisbane.
The mother is not currently in a relationship. Her relationship with Mr M ended in about (omitted) 2016.
Much was made by the father’s counsel of the mother saying on some occasions that the relationship ended in (omitted) 2015.
Mr M attended the family report interviews in May 2016 so it appears that he was still on the scene then. I am not sure what the father’s counsel wanted me to do with the fact that the mother on various occasions indicated that the relationship perhaps ended earlier. If he was implying that the mother pretended in May 2016 that the relationship was ongoing to boost her chances of being able to relocate he should have said so but he didn’t. I cannot understand what was intended to be made of that point. Relationships can fluctuate. People can say things or believe things at different times about the status of their relationship without intending to deceive, and I do not see that whole issue as a credit point.
The mother is from Brisbane. It is where she grew up. It is where her friends are. It is where her familiar haunts are. It is where the parties lived between 2001 and early 2009 and it is where the mother’s relatives live. She set out in her affidavit a lengthy list of the friends and relatives she had in Brisbane.

The mother’s parents currently do not live in Brisbane itself. They live on the (omitted) or somewhere in the (omitted) I think; I am not hugely familiar with Brisbane. They live about an hour from Brisbane but they have always been a very strong support for the mother and they will be much more readily accessible to her, on call if you like for her, if she is living in close proximity to them.
The mother has employment in Brisbane. It is her hometown and it is a bigger town. It gives her more options in terms of exploring new relationships, forming a new relationship and socialising with the friends she has had since she was in primary school. There is nothing to suggest that the mother’s wish to move to Brisbane is perverse or is due to her wanting to put a distance between the father and the child. It is entirely understandable that the mother would feel happier in Brisbane and would see many advantages to herself in living in Brisbane.
The mother is renting in (omitted) so she has a home there. She has a job there and she works at the (omitted) there. She is not in a relationship but given that she has now lived in (omitted) for many years she must have friends there. There is nothing to prevent the mother continuing to live in (omitted) in terms of unavailability of housing and employment but her preference is to live in Brisbane, and there is nothing unreasonable about her wanting to do that.
The father proposes that X stay in (omitted). (omitted) is his hometown. He has a good job in (omitted). He owns a home which he is paying off. He is in a relationship with Ms L who is a (omitted) person as well and who has a (omitted) business in (omitted). Ms L has two daughters and has an arrangement with those children’s father which means that she cannot just relocate.
The father and Ms L have been in a relationship for about two and a half years. They do not live together and X sometimes sleeps at Ms L’s home and sometimes at the father’s home. The father only has one bedroom in his house available at present so if Ms L sleeps at the father’s home X has to sleep on the lounge.
It was the father’s case that once the court proceedings were finished he and Ms L intend to move in together and that would have the advantage for X of living in a blended household with the father, his partner who can help him out with any pick-up and drop-off arrangements that might be necessary, and with A and B with whom X on his evidence has formed a strong bond.
The father is estranged from his father who lives in Brisbane but the paternal grandmother lives in (omitted) and she has a strong relationship with the father and is a strong support for him. The father listed in his affidavit the many family members including his sister Ms A who live in and around (omitted). He values the support of his family just as the mother values the supports of hers.
The father said that the mother could have support from his side of the family or from Ms L in (omitted) if she asked for it. He said that he was always ready to help and his mother Ms R habitually picked X up from school and could help if asked, but the reality is that the parents’ relationship is not perfect and the father has not always been unconditionally available for the mother.
When the mother asked the father to take X quite recently so that she could attend a couple of social events, he said that he would take her but he wanted to have that time in addition to his alternate weekend time. The mother was not happy with that and when the father would not agree to swap the weekends, she either – I cannot remember if she did not avail herself of the opportunity or took X to the social events.
The father is certainly available to assist with X but he is not unconditionally available, and the parties’ relationship is not particularly good at present, nor is it likely to improve if the mother is forced to stay in (omitted) as a result of what she considers to be duress.
The mother could in theory call on the father and members of the father’s family and on his partner to assist with the care of X but that would not be an easy and comfortable situation for her, not the same as having her own family and friends to call on.
In his trial affidavit filed in May 2017 the father alleged that the mother’s relationship with her parents had become strained in 2012 when she was living in Brisbane and that they found X a handful. He alleged she told him she struggled with lack of support in Brisbane. The mother disputed that and at trial the father did not pursue it and did not suggest that the mother would lack support if she moved to Brisbane now.

X’s best interests

Any orders I make about X must be orders determined by treating her best interests as the paramount consideration. This is a relocation case and the mother’s right of freedom of movement is relevant and I have to take that into account but X’s best interests remain the paramount consideration.
S. 60CC (2) and (3) of the Family Law Act 1975 set out the matters to which I must have regard in order to determine X’s best interests.
The primary considerations in s. 60CC (2) are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The second primary consideration is not relevant but I must consider the benefit to the child of having a meaningful relationship with each of her parents.
X has a meaningful relationship with each of her parents at a moment, in other words a relationship which is significant, important and valuable to her.[2]
[2] Mazorski & Albright [2007] 37FamLR
As has been stressed in other cases the concept of meaningful relationship is a qualitative one, not a quantitative one. X will still be able to have a meaningful relationship with both her parents if she lives at a distance from one of them. It will be somewhat different, and the things they can do with her will be different, but as was said in Godfrey & Sanders some time ago what the legislation aspires to is a meaningful relationship, not an optimal relationship.[3]
[3] Godfrey & Sanders [2007] FamCA 102
One thing that can prevent a child having a meaningful relationship with a parent if the child is permitted to relocate is if the parent with whom the child relocates does not value the relationship with the parent left behind and does not foster that relationship.
The father’s counsel suggested in submissions that the mother might not foster the father’s relationship with the child if she and X lived in Brisbane but I do not accept that there is any merit in that submission.
The only basis for it seemed to be that the mother would not agree to the father spending additional time with the child after she returned to (omitted) in 2014 but as I mentioned earlier that claim simply does not bear close scrutiny.
The mother agreed to the 2012 orders applying, and they provided for quite a reasonable amount of time between the father and the child: four hours on two afternoons each week and each alternate weekend from Friday to Sunday, bearing in mind that it could not go over to Monday because of the father’s work; he has to leave for work very early.
There is limited evidence about the father pressing for any particular additional time after he returned to (omitted). Once the mother sought to relocate the father put on the table that he wanted equal time, but I cannot be critical of the mother for not simply falling in with that proposal. Many family consultants do not support equal time for children, for a variety of reasons. It does not suit every child no matter how good their parents are and I cannot brand the mother unreasonable for not agreeing to it. I certainly cannot brand her unreasonable for not agreeing to it in response to a letter sent by the father’s solicitor in February 2017.
I do not accept that the mother has failed to agree to the father spending a reasonable amount of time with the child.
In June 2016 Judge Middleton ordered that the time be from Wednesday to Sunday each alternate week, but the mother’s proposal was for time to be from Thursday to Sunday and it appears to me if you have a look at Judge Middleton’s orders that the time on the afternoons must also have continued. If it did not the parties have read the orders very differently to the way I read them.
The father has had a very reasonable amount of time since the mother returned to (omitted) and the mother has complied with the Court orders.
In response to a question in cross-examination the father agreed that he accepted the mother would foster his relationship with the child and there is nothing to suggest that the mother would not foster the relationship, would attempt to undermine it or would not comply with orders if she moved to Brisbane.
The family consultant thought both parties were capable of fostering the child’s relationship with the other parent and she was not required for cross-examination and was not challenged about her opinions.
Even in the absence of cross-examination of course her opinions do not necessarily carry weight if there is no foundation for them but there is foundation for that opinion, and the family consultant said, and I agree with it:
It is my view that each parent would be capable and willing to ensure meaningful involvement by the other parent, regardless of the outcome in the matter.[4]
[4] Family Report paragraph 89
She also said:
X’s close and positive relationship with her dad does not appear to be at risk, should she move some distance away.[5]
[5] Family Report paragraph 94
X can have a meaningful relationship with each of her parents no matter which one she lives with if one is living at a distance from the other.
The first of the additional considerations in s. 60CC (3) is the views of the child and the weight to be given to those views.
Both parents and Ms L and the paternal grandmother referred to things the child had said which as it happened fitted with their preferred outcome. I cannot place weight on that evidence. It is possible that X has said things which she instinctively knows fit with the views of a particular person at a particular time. There is also the possibility of selective reporting. Not dishonesty as such I hasten to add, just people picking up and remembering snippets which support their case and passing over and forgetting things which might place the first utterances in a different light.
The family report writer is in a different position. She has no axe to grind in the matter and no emotional involvement with it and the child does not have any need to please her, so often what children say to family consultants about what they want is very important.
X is an extremely fortunate little girl because not only is she loved by both her parents; she knows she is loved, a valuable gift that they have given her that will last her all her life.
The general tenor of what X said to the family consultant was that she would be content, and perhaps wished, to move to Brisbane with her mother. The family consultant said as follows:
In summary, X was asked to complete the sentences, “Mummy wants”. She then said, “To go to Brisbane”. “Daddy wants” “To stay here” ---[In other words, in (omitted)]and finally, “I want” “To go to Brisbane and I can still see daddy, but daddy might be sad because I cannot see him all the time”.[6]
[6] Family Report paragraph
X expressed a view to the family consultant but she is young, certainly not mature enough to understand the consequences of making certain decisions.
It is relevant that X has some knowledge of Brisbane and that she knows her grandparents are there and has cousins and a friend there. She was not operating in a vacuum when she expressed the wish to move to Brisbane and she also knew that her mother would be there. However she is a child. There is the issue of the dog and the possibility that may have influenced her in what she said which I cannot rule out given her age, and I cannot place weight on her views in terms of having her views determine what should happen in this matter.
X was not asked about week-about, nor was she asked how she would feel if the mother left and she stayed with the father. I do not have any information about those things because they were not on the table or at least if the week-about was on the table the family consultant did not advert to it when X was interviewed.
I must consider the nature of the relationship between X and each of her parents and any other relevant persons
The family consultant said, and again she was not challenged about this, that X’s history was congruent with the mother being her primary carer and that X would want to preserve that at her age.
However it is crystal clear that X has a very good relationship with both her parents. They love her and she knows they love her. She also has a good relationship with her paternal grandmother and with her maternal grandparents and she has an important and close relationship with her step-siblings. They are not living together but I will call A and B her step-siblings.
The father heavily promoted that and said that the three girls were like sisters. The mother said that X complained to her about some of the things the girls did. Those things are not necessarily inconsistent. They could both be true or be bits of the truth because sisters fight with each other.
The mother said the child did not talk to her about A and B except to complain. The father’s counsel was highly critical of the mother for saying that but I did not gain the impression that the mother was tailoring her evidence about it.
It does not mean I can place on any weight on it, because X no doubt instinctively knows, indeed she must know because of the garage door incident, that there are issues in the family. She may be careful about what she says to her mother. Also, it is not uncommon for children not to talk about good things about other children but to simply make complaints, in the nature of coming home and telling their parents that another child has picked on them or even that the teacher has picked on them.
I accept what the mother says and I am not critical of her for saying it but it does not mean that the child does not have a good relationship with A and B. If it is a normal sibling relationship, it probably has its ups and downs.
It is important to note though that this is not a case in which I am being asked to separate siblings who have grown up together from birth. A and B are important to X when she visits the father but they have been in her life for two years. She is almost eight. It is an important relationship but it is not a relationship upon which everything in this case stands and falls.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, make decisions about the child or communicate with the child.
No party has failed to do any of those things and the father is to be hugely commended for making the effort to travel up to Brisbane on alternate weekends for nine months while the mother and X were there at an earlier time.
I must consider the financial support of the child.
There is a child support assessment in place. There was a little bit of cross-examination about child support but neither parent suggested that the other was motivated by child support considerations in bringing their application.
I must consider the likely effect of any change in the child’s circumstances.
This is integral to the case.
X has always primarily lived with her mother. That is one circumstance. She is closely bonded with her mother. She expects to go to Brisbane with her mother and she has some knowledge of Brisbane and some understanding of what it is like, and I say she expects to go because of what she said to the family consultant.
She attends school in (omitted). She has friends there and she has a relationship with the father’s partner’s children but the family consultant said that she was a lovely, resilient girl and that she was likely to adjust to a change which saw her moving to Brisbane. There is considerable merit in that given that X has a close relationship with her mother. Children do adapt to change. Change is a reality of life and so they should.
If X stays in (omitted) she will stay with her father who is a capable parent and she will not have to face a change of school. She will not have to face seeing less of her step-siblings than she does now, indeed she will see them more. However, she will have a number of changes to adjust to because the father said that if X stayed in (omitted) he and Ms L intended to move in together, so X will then have to adjust to becoming the middle child in a family of three children rather than the only child with her mother.
She may adjust but it is certainly something she is going to have to adjust to and I have somewhat less confidence that she would adapt easily to that change, especially if she was grieving over the fact that her mother had gone to Brisbane without her, because at her age she may simply not understand why it had happened.
If the mother remained in (omitted) (which she says she will not, but I will consider it as an option) X could live either in the current arrangement or in an equal time arrangement between the parents. However if the mother was extremely unhappy about that and felt that she had no control over her life that would be a very poor outcome for the child.
One change proposed by the father was the change to equal time and I have some concerns about how that would work for X if the mother remained in (omitted). Not only would the mother (and I will expand on this a little later in the capacity section) be desperately unhappy, but the parents are not on good terms at the moment and the mother and the stepmother are not on good terms, and if the mother remained in (omitted) under what she considered to be duress those relationships are not likely to improve.
I have considerable reservations about whether this is a case in which equal time would work.
I must consider the practical difficulty and expense of the child spending time with a party.
There will be none if the mother remains in (omitted).
If she does not then whether the child is with her or with the father, there will have to be travel between Brisbane and (omitted) for time to take place. It is about four and a half hours by road. There are flights available and the mother gave some evidence about that. The cost is not prohibitive and the timing of the flights seems tailored to make it quite reasonable for the child to be able to travel by plane.
However that sort of distance and the need for that sort of travel makes time on alternate weekends during school terms out of the question. The father proposed one visit during school terms; the mother proposed three but in any event it would be much more difficult for the child to see the parent she was not living with and she would not be able to see them as frequently.
I must consider the capacity of each parent to provide for the needs of the child including her emotional and educational needs.
The mother is doing a very good job caring for the child on a day-to-day basis. The father’s case to the family report writer, and he touched on this a little in his affidavit as well, was that perhaps the mother was a little overinvested in the child. However it was not suggested either to the family report writer or by the family report writer nor was it suggested at trial that the mother had an unhealthy or enmeshed relationship with the child or a dependence on the child.
The mother is a very capable parent. I do not consider she can be criticised for such things as taking the child to the crèche at the (employer omitted). She said that the child enjoyed seeing her mother at work. To me that sounds entirely credible.

The father is also capable of providing well for the child on a day-to-day basis in terms of feeding her and clothing her and so on. He has support of his mother and his partner to help him deal with the logistics of X’s day-to-day care if she lives with him. He has been spending quite a significant amount of time with her since the orders were changed in June 2016 and the mother did not suggest that there had been any difficulties in him caring for X since the orders were changed.
Ms L has children of her own. She will be involved in X’s care if X lives primarily with the father and there was no suggestion that she was other than completely capable of providing day-to-day care for the child.
The big issue in the case is the likely impact on the mother’s parenting capacity of her being compelled to remain in (omitted).
The mother cannot be compelled to remain in (omitted) and she says she will not do so, so in some ways the only relevance of the evidence she gave about her mental health including the evidence of her psychiatrist is in respect of the reasonableness of her wishing to relocate, but I am going to address the issue in a broader way.
The family report writer expressed the opinion that the mother’s functioning as a parent may be compromised if she remained in (omitted). She referred to a couple of earlier paragraphs in her report in which the mother is recorded as saying:
It’s in X’s best interests for my emotional wellbeing to be strong. I cannot be that if I’m in (omitted).[7]
[7] Family Report paragraph 27
Having regard to things the mother said the family consultant expressed the view that the mother’s functioning as a parent may be adversely impacted on if she remained in (omitted).
However I have to consider the evidence as a whole and see whether there is foundation for that opinion in something other than the mother’s assertions.
I have the evidence of Dr D. In my view he was quite an impressive witness. He gave evidence on the telephone so I did not see him, but he was calm and credible when answering questions.
It is true that his report is partly based on the mother’s self-report, but he also referred to her doctor’s notes which indicated long-term anxiety issues in the mother. He also stressed in cross-examination that he made it very clear to people when they came to see him and asked for a report that the report he provided would not necessarily help the party who was seeking it.
Dr D expressed the view that currently the mother had an adjustment disorder with mixed anxiety and depressed mood. He said as follows:
An adjustment disorder is a psychiatric condition which arises out of circumstances which are distressing for the individual and is perpetuated if the stressors are on-going.
Her symptoms are outlined above and comprise mood dysregulation, anxiety and a sense of hopelessness about her situation.
The stressors as outlined above relate to Ms Eltis’ sense of isolation and lack of support in (omitted), her feeling of being trapped and lack of opportunity.
She describes a situation of estrangement from her ex-husband and his family which is an aggravating and perpetuating factor.
Her general practitioner consultation entries support that [this] has been an issue for her for some time and that she has sought help and support for her distress.
She has also seen a psychologist on a regular basis.[8]
[8] Page 12 of Dr D's Affidavit filed on 14 September 2017.
It is not surprising that the mother would be suffering under those stresses given her circumstances. (omitted) is not her hometown. Her parents have left. She lost a relationship with Mr M following not being able to relocate. After listening to her in the witness box I am satisfied that she genuinely feels trapped and I am not convinced that she could put those feelings and her resentment at the father for forcing her to remain aside and capably parent the child if she decided in the face of a decision that otherwise the child would live primarily with the father, that she would remain in (omitted).
I do not accept the submission by the father’s counsel that there is no evidence that the mother’s parenting capacity would be affected if she was forced to remain in (omitted). The evidence strongly supports a finding that it would be. The mother has seen her doctor on several occasions over the years because of symptoms of distress and she was given a few days off work after she saw her doctor, very distressed, after the hearing could not proceed in July 2017.
Dr D did not feel that the mother had any mental health issues which would impact on her parenting of X if she was permitted to move with her to Brisbane. He said that this would be likely to remove the stresses from her. He did say that in his view relocation without her daughter would be likely to impact negatively on her mental health, which is relevant because she would continue to see the child if she relocated without her, but he said that there was an element of speculation in how that would affect her capacity to parent the child in the future.
Another matter which makes it entirely credible that the mother is very unhappy in (omitted) and may not adjust if she had to remain there is that she has been telling the father for some years that she wanted to leave (omitted).[9] She raised it with him in July 2014 and again in November 2014. The father acknowledged that the mother was unhappy in (omitted) in his affidavit filed in January 2016 and he acknowledged during the family report interviews that the mother suffered from anxiety.[10]
[9] Mother’s affidavit paragraph 34 and 35
[10] Family Report paragraph 51
The weight of the evidence strongly supports a finding that being forced to remain in (omitted) is having an adverse impact on the mother’s mental health.
There is also strong evidence to support a finding that this will continue to be the case if an order is made which means that the mother feels forced to remain there.
This is not a case where the mother is likely to adjust to that outcome and make the best of it for X’s sake. She has been under this stress for years and it is not something that is likely to dissipate.
The father’s counsel was highly critical of the mother for saying that if the Court would not allow her to relocate with X then she would relocate on her own and leave X with her father in (omitted). I am not, as I indicated earlier. The mother saying that is entirely understandable and it is also, as is obvious from seeing the mother in the witness box, not a decision that she has come to lightly; the thought of it happening causes her some considerable distress. Dr D pointed out that this ultimatum by the mother should be viewed as evidence of her desperation and I accept that evidence.
I must consider the child’s maturity, sex and background.
That is not relevant as a separate consideration.
Family violence is not relevant and there are no family violence orders.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.
The mother is not to be criticised for wanting to relocate. It is frequently the case that one parent can happily remain in a pre-separation location and the other cannot. The father cannot be criticised for wanting to remain in (omitted) but neither can the mother for wanting to relocate. It creates a problem that the parents have to solve and if they cannot solve it the Court has to solve it, but it does not mean that the Court should find that one parent – either the one who says, “I’m not moving” or the one who says “I want to move” – should be criticised as having a poor attitude to the child or the responsibilities of parenthood.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
That is always preferable because nobody wants to be involved in repeated litigation, but once a decision is made in this matter it is likely to be the end of litigation between these parents whatever the decision might be.
I must consider any other relevant matter.
A relevant matter is the nature of the parties’ relationship.
To a degree the parents have a reasonable relationship. They are both good people. They are employed. They do not have any drug, alcohol or mental health issues that are impacting on their capacity to parent the child, save for what I have discussed about the mother, and when I say “no mental health issues”, they are not people who have things like schizophrenia or borderline personality disorder or anything of that nature.
They have a reasonable relationship, but only to a degree. At present their communication is not perfect. The father does not want to commit anything to writing. The mother does not want to talk to him in person. That is likely to change once the relocation comes into effect, whether it is the relocation of the mother on her own or the relocation of the mother with X, because that will take some stress off the mother. But they do lack sympathy for each other and lack an inability to see things from the other’s perspective.
Each of them has behaved recently in ways I consider extremely regrettable.
In terms of the father I consider his behaviour in relation to the birthday party was unwarranted.
As I noted earlier in my view the orders which are in place are the existing 2012 orders with the change made to them by Judge Middleton which only affected the time on the weekends and those orders provide for X’s birthday to be shared so that both parents have time with her on her birthday.
The child’s birthday fell on a weekend this year and the mother organised a birthday party for her in the morning. It was the father’s weekend and the father did not accept that the mother should decide who attended the party she had organised and a dispute occurred about who was going to attend. The father’s counsel was critical of the mother for wanting to exclude A, B and Ms L, but given the situation between these parents I cannot see why that is a reason to be critical of her and why the father could not have just had his own birthday party for the child at a later point on the day.
The mother’s behaviour in not opening the roller door for Ms L is highly regrettable. The mother said that she felt upset about a statement in Ms L’s affidavit about X not wanting to go back to her at the end of the weekend. I accept that she did feel upset about it. The father’s counsel said her upset was hard to understand; I do not agree. However, to have that carry forward into not opening the roller door for Ms L was just wrong and rude.
These are examples of how the litigation and the mother’s strong desire to relocate are affecting the parties’ relationship. Their relationship has been a bit fragile since the proceedings commenced. It seems to me though that they are probably people who once the proceedings are over will have a pretty good functional capacity to communicate. They are not parents who engage in denigration of each other, who swear and shout at each other; they are intelligent, educated people and although their relationship is poor at the moment they have a reasonable capacity to communicate in the future if the stressor of the mother being forced to remain in (omitted) is removed.
If that stressor remains, then in my view, this poor relationship between them and their poor capacity to communicate is going to remain.

Parental Responsibility

S. 61DA of the Family Law Act 1975 applies in this case and the parents agree there should be an order for equal shared parental responsibility and that is the order that I am going to make.

Conclusion

As I intend to make an order for equal shared parental responsibility I must follow the pathway through s. 65DAA of the Family Law Act 1975 and must consider whether equal time (which is one of the father’s proposals) or alternatively substantial and significant time (which is an order that I can make even though neither party proposed it) is in the child’s best interests and reasonably practicable, and if so, I must consider making an order of that kind.
I cannot be satisfied that equal time would be in X’s best interests.
X has always lived primarily with her mother. I accept that the father can care for her on a day-to-day basis but it does not follow merely because a parent is a capable parent and has a good relationship with the child that the child’s living arrangement should be upended for the sake of it so that she is shared equally between her parents.
X’s views about equal time are not known to me as the issue was never explored with her. The mother has always been her primary carer. I cannot be sure that she would adjust to equal time. Everyone loves her and she feels secure but it does not automatically mean that she wants to have two homes and two separate addresses or to share her time exactly equally between two households in one of which she is an only child and in the other of which she would be perhaps an only child if the father does not blend his household with Ms L’s, but perhaps a middle child in a blended family.
It would also not be in X’s best interests if it could only occur if the mother were forced to remain in (omitted), and that is also relevant to the issue of reasonable practicability of equal time.
To determine whether equal time is reasonably practicable I must consider the matters in s. 65DAA (5) which are the distance the parties live apart, their capacity to implement an arrangement of that kind, the impact of an arrangement of that kind on the child, the parties’ capacity to communicate, and any other relevant matter.
At present the parties live sufficiently close for equal time to occur, but that will only continue if the mother decides to remain in (omitted), because the father says he will not move.
The mother says that she will not remain and if I accept that – and I do accept it – that rules out equal time straightaway.
If the mother did decide to remain in (omitted) because it was the only way in which she could continue to have a significant involvement in X’s life, her parenting capacity would, I am satisfied, be impaired. That would be highly likely to have an adverse impact on the child and it would make it highly likely that these parents could not make an equal time arrangement work.
I must also consider the issue of the child spending significant and substantial time with each of her parents. That is something which would be in X’s best interests because it is occurring now and she is thriving in that arrangement. There is no doubt that an order for substantial and significant time would be in her best interests.
The difficulty however, and the reason I cannot make that order in this case, is twofold: if the mother leaves (omitted) it cannot occur because the distance between the parties would be too great, and if the mother remains in (omitted), the impact on her parenting capacity would be such that I have grave concerns about how that arrangement would work.
The fact that substantial and significant time could occur if the mother remained in (omitted) does not trump all the other considerations and the father needs to understand that. The High Court made that clear in MRR & GR[11] - which refers to equal time but which applies equally to substantial and significant time – when they observed this:
Section 65DAA of the Family Law Act is expressed in imperative terms. It obliges the Court to consider both the question of whether it is in the best interests of the child to spend equal time with each parent and the question of whether it is reasonably practicable that the child spend equal time with each of them. It is only when both questions are answered in the affirmative that consideration may be given under paragraph (c) for the making of the order.
[11] MRR & GR
The High Court went on to say:
Section 65DAA (1) is concerned with the reality of the situation of the parents and the children, not whether it is desirable that there be equal time.
In summary, I cannot be satisfied that an equal time order would be in X’s best interests, nor would it be reasonably practicable even if the mother remained in (omitted).
Substantial and significant time would be in the child’s best interests but it would not be reasonably practicable unless the mother remained and if she did I have some serious concerns about the impact of that on her parenting capacity.
The solution to this matter lies in referring again to the three outcomes I mentioned at the beginning of the judgment and considering the advantages and disadvantages of each.
I will deal first with the one of the mother deciding, though she is presently saying she will not, to remain in (omitted) if X is prevented from relocating. X could then continue to live in the current five/nine arrangement which is working uneventfully for her and thus have substantial and significant time with both her parents.
The upshot of that would be however that she would be living with a desperately unhappy mother and a mother who may well not cope with remaining in (omitted) and the relationship between the parents and between the mother and the father’s partner, which is very touchy at present, is likely to deteriorate even further. This would be the worst possible outcome for X; it only has disadvantages.
If X remains in (omitted) with the father, she will cease to live with the mother who has been her primary carer to date. She will have to adjust to seeing her mother far less frequently than she does now and it will involve some travel. She will not have to adjust to a change of school or to seeing the father’s partner and his partner’s children less frequently; indeed, she will see them more often, but she will be required to make a very significant adjustment.
X’s father loves her and she loves him, but X has lived with her mother all her life. She is completely safe and completely comfortable with her mother and she may not fully understand why this change had come about. I am not convinced that X would easily adjust to that change, especially as she expects to accompany her mother to Brisbane. She may also have to adjust to a change to the father’s living arrangements following hot on the heels of not living with the mother.
If X moves to Brisbane with her mother she will remain living with the mother who has been her primary carer throughout her life. She will have to change schools but she is noted to be an adaptable child. She knows Brisbane. She has a friend there and she is highly likely to adapt to that change.
She will see her father less frequently, but frequently enough to maintain a strong bond with him and a strong bond with members of his family, his partner and his partner’s children. There is no risk of the mother not complying with court orders or undermining the child’s relationship with the father if she moves to Brisbane with the child.
Seeing her father will involve quite a bit of travel for X but (omitted) and Brisbane are not a prohibitive distance apart.
There is never an ideal outcome in a relocation matter. Almost every relocation matter involves some loss for a child but in my view the outcome which is very clearly in X’s best interests is that she lives with her mother in Brisbane rather than her father in (omitted).
Throughout these proceedings the father was highly critical of the mother for wanting to relocate, but courts have made it very clear that both parents have a choice about where they live, and one parent’s choice should not automatically be assumed to be better than the other’s.
In U & U the Full Court said this.
The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of part 7 of the Family Law Act. If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and the mother must in every case subordinate her ambitions and wishes not to the needs of the child but to the wishes of the father to pursue life in the place of his choosing. It is the interests of the child which are paramount, not the interest or needs of the parents, let alone the interests of one of them. [12]
[12] U & U [2002] 211 CLR 238

X is a lucky child who knows that she is loved by both her parents but she has always primarily lived with her mother, and her best interests will be met by an order that she be permitted to relocate with her mother and live with her mother in Brisbane.
I come to the orders I am going to make. The mother proposed that X spend time with the father for half of the three shorter Queensland school holidays and for four weeks of the Queensland summer school holiday broken into two separate lots. She proposed that she also spend time with the father as agreed when the father was in Brisbane or the mother in (omitted) and that she spends time with him in (omitted) on three occasions each school term.
I am not going to make an order that the child spend three weekends with the father in (omitted) because I am concerned that it may cause difficulty for the child and require travel that is too frequent. I am going to prefer the father’s proposal that there be one visit per school term, but I will also make an order that there be such additional or alternate time as the parents agree so if the parents consider that there should be more time than once a term in (omitted), they can organise that.

I certify that the preceding one hundred and eighty one (181) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 2 February 2018

[2018] FCCA 190

10 January 2018

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Procedural Fairness