Evans and Downes - [2009] FMCAfam 1431

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EVANS & DOWNES

[2009] FMCAfam 1431

FAMILY LAW – Child aged 14 months – interim arrangements for care – unilateral relocation of child by mother from rural South Australia to Melbourne – best interests – principles to be applied to application for interim relocation – equal shared parental responsibility – presumption rebutted in circumstances of the case.

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

Goode & Goode (2006) FLC 93-286
AMS v AIF (1999) FLC 92-852
C & S [1998] FamCA 66
U & U (2002) FLC 93-112
Morgan & Miles [2007] FamCA 1230

Applicant:

MR EVANS

Respondent:

MS DOWNES

File Number:

ADC 4779 of 2009

Judgment of:

Brown FM

Hearing date:

15 December 2009

Date of Last Submission:

15 December 2009

Delivered at:

Adelaide

Delivered on:

16 December 2009

REPRESENTATION

Counsel for the Applicant:

Ms H. Tinning

Solicitors for the Applicant:

Degaris Lawyers

Counsel for the Respondent:

Mr Piekarski then Ms S Foo

Solicitors for the Respondent:

Hartleys Lawyers

ORDERS

The mother return the child [X] born [in] 2008 to the area of [K] no later than 5.00 pm on 23 December 2009.
In the event that the mother elects to live in [K] or within a radius of

50 kilometres of the town pending final determination of the parties’ competing applications, the child live with the mother and spend time with the father as follows:
(a)On Christmas Day 2009 from 9.00 am until 1.00 pm;
(b)On each weekend commencing 2 January 2010 from 9.00 am Saturday until midday the following Sunday;
(c)
On each Tuesday and Thursday commencing 29 and

31 December 2009 respectively from 2.30 pm until 5.30 pm; and
(d)At any other times as may be agreed between the parties and on such times and conditions that may be agreed.
In the event that the mother elects to live in [K] or within a radius of

50 kilometres of the town pending final determination of the parties’ competing applications the father and or his nominee will provide suitable accommodation to the mother and child (in [K]) at a rental of no more than $150.00 per week from 5.00 pm 23 December 2009 onwards.
In the event that the mother elects not to live in [K] or within a radius of 50 kilometres of the town the child live with the father and spend time with the mother at times to be agreed between the parties.
The child be exchanged between the parties pursuant to order 2 hereof at a location to be agreed between the parties and failing agreement to be outside the Post Office in [K]
That the parties be restrained and injunctions are hereby granted restraining them from removing or causing or allowing the child to be removed from [K] or a radius of 50 kilometres without the written permission of each party.
Further directions be adjourned to the Mount Gambier circuit before Federal Magistrate Kelly on 19 February 2010 at 9.30 am, in particular, that the matter can be allocated an expedited hearing in the Mount Gambier Court.
A copy of the transcript be ordered and released to the parties.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 4779 of 2009

MR EVANS

Applicant

And

MS DOWNES

Respondent

REASONS FOR JUDGMENT

Introduction and background

These reasons for judgment were delivered orally. The mother could not be present to hear the reasons because she was in Melbourne. Given the complexity and controversy of the matter, it is appropriate the reasons be transcribed.
The matter of Evans & Downes is listed before me today, so I can deliver reasons, following the interim hearing, which was held yesterday. For all sorts of reasons it is a difficult matter.
Mr Evans, the father, and Ms Downes, the mother, are the parents of [X], who was born [in] 2008. Until 20 November 2009, the parties and [X] lived, as a family, in [K] in the south-east of South Australia.
On 20 November 2009, the mother and [X] moved away from [K] and went to live in Melbourne. It is clear that Ms Downes did not have Mr Evans’ obvious approval to move [X] away from the [K] area.
The move has obvious implications for how often the father can see [X] unless he, Mr Evans, moves to Melbourne, which at this stage he is disinclined to do.
In these circumstances, the father seeks that [X] be returned to [K], the parties have equal shared parental responsibility for him and, pending trial, [X] live with each of his parents for equal periods of time. Obviously this latter outcome requires Ms Downes to return to live in [K], something which, at this stage, she is disinclined to do.
The mother also agrees that the parties should have equal shared parental responsibility for [X], however she seeks orders that would see [X] living with her in Melbourne.
At this stage she has no clear proposals as to how [X] should spend time with his father other than she will do her best to be reasonable.
The mother also seeks the transfer of the case to the Melbourne Registry. The father wishes the matter to be determined by the court on one of its regular circuits to Mount Gambier, the main town near [K].
This case raises complex issues of a type which the Federal Magistrates Court, a busy first instance court, is regularly asked to resolve at an interim stage invariably against a background of extreme emotion, where time for hearing is limited, where documents have been hastily prepared and one party appears from a distance, by telephone.
The reason for the urgency is reasonably commonplace. One party, very often a mother, says that her previous domestic circumstances were so fraught with difficulty and unhappiness that she had no viable alternative but to relocate, often secretly, both herself and any child concerned away from her unsympathetic partner and unsatisfactory circumstances and seek the security and support offered by family members, who live many hundreds of kilometres away, often interstate.
Accordingly it is said that the reason for the sudden and apparently unilateral move of a child is because of a state of emergency has arisen, which impinges on that child’s best interests. Very often it is also said that the parent moving the child has been the child’s primary carer and, as such, considerations relating to the security and happiness of that parent and the implications of this for the child concerned, justify such a move, even if it will adversely impact on the child’s level of relationship with the other parent involved.
On the other hand, the parent left behind, very often a father, will contend that if the court permits the child concerned to remain where he or she is, it will necessarily mean that the child will be potentially robbed of having an intimate and meaningful relationship with his or her father, which would be contrary to that child’s best interests both in the short and longer term.
These considerations are more pronounced with younger children who are in the process of developing attachments and relationships with those who are likely to be important to them throughout life. For obvious reasons, a father is likely to be amongst the most significant of relatives for a child.
These difficult issues are often compounded by financial considerations. Although a relocating parent has obviously demonstrated the ability to move in the first place, he or she asserts later that it would be financially difficult for him or her, if not impossible, to return.
In addition, there may be no obvious place of accommodation for the parent and child concerned, if a return is compelled. Equally, a parent left behind is likely to assert that he or she does not have the financial resources to visit the child concerned regularly, in the new location, which has been foisted upon him or her without any consultation.
All these difficult issues are present in the current case, which provides no easy or obvious solution. As I remarked yesterday, whatever is the outcome, one party will feel aggrieved and this must have consequences for the security and happiness of [X].
By way of background, the mother was born [in] 1989; the father was born [in] 1982. It cannot be said that they have had a long relationship with one another.
The parties met in February 2007. Their relationship lasted from 1 August 2007 until, as I have indicated, they separated in sudden circumstances on 20 November 2009. They have never been married.
It is common ground between them that the parties met in Melbourne. The mother’s family live mainly in Melbourne it seems. The father’s parents live in [K]. His father runs an [trade] business. His step-mother also works in the business and, at the present time, the father is employed as an apprentice [tradesman] by his father. The mother has worked as a [omitted] in the past.
In April 2009 the parties and [X] moved to [K]. The mother says she went reluctantly to the town. From the father’s perspective it was close to where his family lived and the town offered some opportunities. The family lived in a house owned by the father’s father. There can be no doubt that the parties separated on

20 November 2009, when the mother and [X] left for Melbourne. The father has not seen [X] since 20 November 2009.
He commenced these proceedings on 3 December 2009. They were made returnable yesterday, 15 December 2009. Accordingly, it cannot be said that the father has wasted any time in bringing this difficult matter before the court.
The mother apparently became aware of these proceedings around 6 December 2009. She filed a response and an affidavit in support around 14 December 2009. She relies on those documents. The father relies on his own affidavit filed on 3 December and one of his step‑mother, Ms E, filed on 3 December also.
The father’s case can be summarised as follows: the mother’s decision to leave the relationship came as a complete shock to him. He thought he, she and [X] were a happy family. The mother deceived him about her intention to end the relationship and leave [K] for Melbourne.
It is his case that he has a close and loving bond with [X]. He asserts that he has shared in [X]’s care in the past, particularly that he cared for him for extended periods of up to five days when the mother has been away in Melbourne. In addition, he says that when the mother has been working he also cared for [X].
He denies ever having been violent to the mother or [X]. It is his case that he does not abuse alcohol and never has done. He concedes that he has smoked marijuana in the past but it is his case that he no longer does so.
The underpinning of his case is that the mother is likely to be unwilling to support his relationship with [X] because she has said that to him in the past. It is his case that, to a large extent, the move to Melbourne is one designed to satisfy the mother’s own emotional needs rather than one being based on [X]’s concerns and best interests.
The father says that the mother’s attitude is best exemplified by her concealing herself and [X] and her alleged statements made to him by mobile phone or telephone after the parties separated. In this regard he says that the mother told him: “You are never going to find me. You won’t see your son again. You are playing by my rules now and I will keep moving so you cannot find me.”
The mother’s position, as is very often the case in matters such as this, is quite different to that of the father. She asserts that she has always been [X]’s primary or main provider of care. She says that the father rarely assisted in [X]’s care because essentially he was addicted to cannabis. She accepts that she also smoked the drug but not nearly as much as the father did. It is her case that she did come to [K] but only reluctantly and it was her understanding, long communicated to the father, that if she did not like the town the family would leave it.
She portrays the father as an unreliable person, both in terms of his employment, his involvement with [X] and the fact that he was unwilling to provide properly financially for the family. It is her case that as a result of these factors she became bitterly unhappy in [K], something about which the father must have been aware.
She says this in her affidavit material:
“I was miserable with the father in [K]. I had repeatedly told the father after a few months that I wanted to return to Melbourne. The father would always say that if I wanted to go, just leave but [X] would have to stay.
I continued living with the father. I was concerned that the father would physically take [X] from me if he knew I was planning to return to Melbourne.
Even though I had concerns of the father I had previously convinced myself to stay on with him. However, I discovered that the father had been using my computer to access chat sites with live models and that he was actively engaged with them.
I realised then that I could not continue to live with the father and it was not in [X]’s best interests to remain living with the father. I decided to take [X] and packed my belongings and left the father on 19 November 2009 to drive back to Melbourne.”
Accordingly, the mother concedes that she left [K] with [X] unilaterally but she also contends that she did so because it was likely to be the best thing for [X] because of the emotional insensitivity of the father to her needs.
She contends that the father has a violent and argumentative disposition. However, she also concedes that he has never actually been physically violent towards her. She asserts as follows in her affidavit material:
“Even though throughout the relationship the father had never physically hurt me, I was scared of the father as I knew he had the potential to do violence.’
In this context she also asserts that the father told her that he had hit [X] thirteen times, in the past, whilst the child had been in his care. She did not herself witness such incidents, but the admission, given its nature, caused her concern.
It is the mother’s position that her continued presence in [K] had a deleterious effect on her health, both psychological and physical. She says, because of her misery, she lost seven kilograms. She told the father, she asserts, that she was bitterly unhappy and the father must have known this. I have not, however, been provided with any formal medical evidence to support the mother’s assertion that she was depressed.
The mother’s case is that [X] is a child who enjoys good health. She is currently living with her father in Melbourne. She is receiving social security, although it is her case that she will be looking for work shortly. She does not have any clear proposals as to how [X] would spent time with his father.
She deposes that she understands that [X] needs to spend regular time with his father however she says that given the distance, “I am unsure as to how regular the time can be.” She proposes the child be exchanged at [H] and hopes that the father’s parents will assist him financially. It would be her preference that Mr Evans drive to Melbourne to see [X]. She is also concerned at the father having unsupervised time with [X].

The legal principles to be applied

I now turn to the legal principles which I have to apply in this particular matter. The service of [X]’s best interests is the most important consideration [Family Law Act 1975 section 60CA]. The same legal principles apply at both the interim and the final stage, the distinction being that interim hearings do not determine long-term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency, in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The aims and principles of the part of the Family Law Act 1975 [section 60B] dealing with children emphasise the desirability of both a child’s parents being as closely involved as possible in their child’s life, both in the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm, from being subjected to abuse, neglect or family violence.
Accordingly, the starting point prior to the making of any parenting order is for the court to consider whether the parents concerned should have equal shared parental responsibility for their child.
The presumption of equal shared parental responsibility, which is set out in section 61DA of the Family Law Act is rebutted if it is found on reasonable grounds that one of the child’s parents has abused the child or exposed him or her to family violence [section 61DA(2)].
The court also has a discretion not to apply the presumption, at the interim stage, if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. However, the Full Court has directed that the presumption is not to be applied in an arbitrary fashion, rather, it is most usually to have application at the interim stage in cases where there is likely to be limited evidence [see Goode & Goode (2006) FLC 93-286 at 80, 903].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility for the child.
It should also be noted that if the presumption is applied at the interim stage it must be specifically disregarded by the court at the final stage when a more exhaustive hearing is possible.
In considering the child’s best interests I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider: primary considerations and additional considerations.
There are two primary considerations: firstly, the need to ensure that any child concerned has a meaningful relationship with both his or her parents and secondly, the need to ensure that any child is protected from harm, both physical or psychological harm, which may arise if the child is exposed to any kind of abuse or neglect including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The Full Court has directed that it is necessary for the court to consider all the section 60CC factors applicable and, if possible, make findings about them [see Goode & Goode (supra) at 80,903]. However, at the interim stage it is recognised that it may be difficult, if not impossible, for the court to make findings about issues in dispute.
Issues of practicality, in the application of any potential parenting order, are dealt with by the provisions of section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on any child involved.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the interests of any child concerned, according to the various criteria set out in section 60CC and pursuant to the objects and principles contained in section 60B. Pursuant to section 65D the court is empowered to make whatever parenting order it thinks proper.

This case throws up complex issues to do with relocation. It is the mother’s wish to live with the child in Melbourne. It is her case that, as the child’s primary provider of care, she should be entitled to live how and where she chooses with [X]. It is also her case that if she is happy and well settled in the environment of her choosing, this is likely to have beneficial flow-on effects for [X].
It is the mother’s case that, as the applicable legislation makes the child’s best interests the paramount consideration, it would be imprudent for the court to ignore the issues which she has raised which essentially paint it as untenable for her to be compelled to live with [X] and tend to his needs at his young age in a place where she herself is bitterly unhappy and feels unsupported both emotionally and practically. Essentially she says that [K] would be a prison for her and if she is so imprisoned, she will not be able to attend to [X]’s needs adequately.
On the other hand, the father asserts that the mother’s actions have deprived the child of the opportunity to benefit from having a meaningful relationship with him. As such, it is his case that the mother has shown a poor level of insight into the responsibilities of being a parent.
Australia is a free and democratic country. It is the right of any person to live how and where he or she chooses. There is no principle of law which requires separated parents to live close to one another on an indefinite basis.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned choose not to live together. These principles are difficult to reconcile, particularly at the interim stage, where evidence is necessarily hastily prepared and untested.
As a result of these competing considerations the High Court has determined that relocation cases require a court to engage in a close and delicate analysis of the various issues involved, the pros and cons from a child’s perspective of either relocating or remaining in the same location [see AMS v AIF (1999) FLC 92-852].
As a result of those considerations it is usually considered preferable that issues of relocation not be determined at the interim stage, particularly as such decisions have potentially serious ramifications for children, particularly young children, in terms of their parental relationships.
In addition, for self-apparent reasons, the determination of a relocation issue at the interim stage may make the need for final hearing redundant and so deprive the child concerned of the opportunity for a court to engage in the close and delicate analysis of the various issues concerned. To use a popular metaphor, if relocation is determined at the interim stage, the horse may have bolted.
As such, the Full Court of the Family Court has indicated that it is usually preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regards to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone [see C & S [1998] FamCA 66].
At both the interim and final stage of any relocation case, the best interests of the child concerned remain the paramount consideration. Depending upon the circumstances of the case it may be incumbent upon the court to investigate the possibility of one parent moving to be closer to the child concerned rather than necessarily directing that a child be moved close to that parent or be restrained from moving in the first place [see U & U (2002) FLC 93-112].
However, at this stage I have no evidence as to the practicality or otherwise of Mr Evans potentially moving to Melbourne. In any event it is his case that he is well settled in [K] where he is happy and he is employed and it is his case that the mother has engineered this situation of recent development without any consultation with him. I agree with his submission in this regard.
C & S was decided prior to the Family Law Amendment (Shared Parental Responsibility) Act 2006. Prior to the amending Act there was a focus on maintaining stability in arrangements for a child’s care pending a final hearing.
Accordingly at the interim stage the court was directed to exercise considerable caution in respect of relocation issues, particularly unilateral relocations which occurred independently of the other parent concerned.
I agree that at the interim stage the court must continue to exercise considerable caution about unilateral relocation. The reasons for this caution are obvious: parents should not be encouraged to feel that they can take things into their own hands and in the heat and emotional disconnection of separation, make decisions which will serve their ultimate long-term aims.
In my view, as far as possible, unless there are significant issues to do with the welfare of a child, issues to do with relocation should be determined, as far as possible on a metaphorical level playing field unaffected by the post separation actions of one parent who has moved.
In Morgan & Miles [[2007] FamCA 1230], Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C & S remain apt and relevant to determination of these cases.”
Accordingly, at this interim stage, it is my view that I must make some assessment of the evidence available to me to determine whether there was a case of such emergency that justified the mother’s actions in moving [X] away from [K].
If I do not consider that there was such an emergency, it may be incumbent upon me to determine that the child should return to the locale from which he was removed, it being not usually in a child’s best interests that long-term issues pertaining to a child, such as relocation, be determined in a truncated or interim hearing.

Conclusions

It is now the stage where I attempt to marry up these legal principles to the factual situation in this case, as best I can make it out. Firstly I must consider the relevant section 60CC factors, particularly the primary considerations.
It is the mother’s case that her unhappy situation was so extreme that the only way she could protect [X] from possible physical or psychological harm was to remove him from [K]. The mother asserts that she feared the father but she is unable to point to any specific episode of violence on his part.
I accept the mother was in a difficult position. She was alone in a small country town. She wanted to separate from Mr Evans. I also accept that she is likely to be somewhat immature at 20 years of age.
However, she made no attempt whatsoever to broach these difficult issues, I think with Mr Evans or indeed with his parents or indeed with anyone else. She had only one plan, which was to get as far away as possible from [K] and Mr Evans. She did that secretly. In so doing she had no thought as to how [X] would have any level of relationship with his father, let alone a meaningful one.
I do not think that the mother’s situation, difficult as it potentially was from her perspective, was one of such emergency that she was justified in moving [X] so far away from his father. Certainly it cannot be said, I think, that she had to do what she did to protect [X] from being exposed to physical or psychological harm as a result of abuse, neglect or family violence. There were other remedies available to her, I think, particularly in terms of her obtaining a domestic violence restraining order; if she deemed it necessary. She did not do any of those things.
In all these circumstances, I think I must give some paramountcy to considerations relating to the benefit that [X] is likely to have in having a meaningful relationship with not only his mother but also his father.
I accept that the father loves [X] very much indeed. The mother concedes this. Ms E senior has deposed in her affidavit to what she feels about the matter. She says that [X] means the world to

Mr Evans and he would do anything for him. She also says she loves [X] “as does my husband, and [X] knows and loves us.”
At this present stage, if Mr Evans remains in [K] and Ms Downes and [X] remain in Melbourne, it is difficult to see how [X] can have any level of meaningful relationship with his father.
[X] is a young child of about 14 or 15 months of age. It is, I think, trite to suggest he can have some form of relationship with his father by means of a video link up, even if such a thing was necessarily available. The likely deficit occurring to [X] in him having a meaningful relationship with his father, I think, is a significant factor which militates in favour of Mr Evans’ position.
I turn to the relevant additional considerations, as outlined in section 60CC(3). [X] is too young to express any view. At the heart of this difficult case are the nature of [X]’s relationship with each of his parents and indeed with others including his grandparents, both maternal and paternal.
This is one of the central evidentiary issues in this case. The mother says she was [X]’s primary carer. This may be so. I am not in a position to determine this issue at this stage, but I do not think it can be said that [X] has no level of relationship with his father.
Until very recently the parties and [X] lived together, as a family in one home. [X] must have some level of relationship with his father. Paternal relations are likely to be important to [X] as he grows up. Similarly, it would seem clear that [X] has at least some level of relationship with his paternal grandparents. That has been brought to an end by the mother’s actions.
I have to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent concerned. Again, this is likely to be a significant consideration in this particular case.
By her actions the mother demonstrated that she had a compromised ability in this regard. She had really no thoughts as to how [X] would see his father. She, it seems to some extent, waited for him to bring an application. She is able to point to the difficulties in the case but provide no clear answers for them.
The Family Law legislation encourages parents to make joint decisions about their child, particularly major decisions. One such major decision is a decision which changes a child’s living arrangement which makes it significantly more difficult for the child concerned to spend time with a parent. The mother made such a decision about [X] off her own bat. She did not consult with

Mr Evans at all about it.
Considering the matters set out in section 60CC(4), I am of the view that this displayed a compromised ability and level of insight into the responsibilities of being a parent on her part.
I also have to consider the practical implications that arise from this case. If [X] remains living in Melbourne, it will be expensive for him to spend time with his father and paternal relatives. Either [X] will have to come to [K] or Mr Evans will have to travel to Melbourne. The travel will be expensive and tiring for a child of [X]’s age.
At the end of the day, as I indicated, it may ultimately be the case that Mr Evans will have to travel to Melbourne, if Ms Downes and [X] ultimately end up living there. The practical implications are endless and in my view demand a close and delicate analysis of all the various options open. That analysis can only take place at final hearing.
This case requires me to make some assessment of what, in the short term, is the best outcome for [X]. I have come to the conclusion that the optimal arrangement for him, particularly bearing in mind his age, and he is a young child at a stage of development where he is forming his relationship with each of his parents, is that there be an arrangement whereby he is able to see both of his parents on a fairly regular and frequent basis.
This must mean, inevitably, that the best outcome for [X] is that his parents live reasonably close together, in the same locale, particularly pending the final determination of their competing applications.
There are many possible outcomes in this case and as the High Court has pointed out, the court is not bound just to choose between the preferred options of each of the parties. The mother’s case is that she will be so unhappy that she will not be a capable parent if she is forced to come back to [K].
I do not necessarily accept that at this stage. The mother has lived in [K] in the past. Also, if a reasonably expedited date for hearing is provided, she will at least know that there is a specific time set, when the issue will be determined one way or the other. She will not, as it were, be imprisoned in [K], without any prospect of release.
There are many practical implications arising from the mother being essentially compelled to return to live in [K]. It is often the case that a parent can easily leave an unpalatable locale but then says, “I can’t go back because I have no money.”
I am not blind to those considerations but, in this case, I have been told that Mr E Senior, who owns property in the [K] area, is prepared to make it available to Ms Downes at a reasonable rent. It is also possible, I am told, for Ms Downes to consider living in [R], where she has friends. [R] being a nearby seaside town to [K].
Accordingly, I do not think it is impossible for Ms Downes to come back to [K]. If she chooses to do so is a matter for her. I cannot compel her to live in [K] against her will.
It seems clear to me, at this stage, as I have said, that what [X] needs is to have a relationship with both his parents. I do not think it would be untenable for [X] or for his mother, albeit with reluctance and unhappiness, to come back to [K]. I am not persuaded, particularly in the absence of any medical evidence, that

Ms Downes’ parenting ability for [X] will be paralysed by such an outcome.
At this stage, I do not think that the presumption of equal shared parental responsibility should be applied in this case. I do not think it is appropriate for it to be applied because the parties’ situation is so fraught with difficulty. I do not, to be frank, think the parties will be able to exercise parental responsibility consensually for [X], if one party feels that he or she has had something foisted upon him or her, but that is not the end of the matter.
I have to consider what is the best outcome for [X] having considered all the relevant section 60CC factors. In conclusion, I do not think the mother’s situation was so dire or so desperate that considerations relating to [X]’s physical and emotional health dictated that he should be removed far away from his father.
At this stage I think a consideration of [X]’s best interests dictate that he needs to have a meaningful level of relationship with both his parents. I do not think it is practicable or fair for the father to be compelled to move to Melbourne because that is what the mother has unilateral foisted upon him.
In all these circumstances, I think the best option for [X] is that he comes back to live in the [K] area, so that he can resume his relationship with his father. If the mother decides that she cannot bear the prospect of living in [K], this must mean that [X] should live with his father.
I also propose, ensuring as best I can, that the hearing of this matter be expedited so that the issue of relocation should be determined fully and completely as quickly as possible.
At this stage I do not think it would be in [X]’s best interests if

Ms Downes elects to return to live in [K], that he should live in a shared-care regime, as Mr Evans proposes. I do not think, having considered the parties’ emotional situation, the age of the child concerned, that he would cope with moving regularly between two different and conflicted households.
For all those reasons I propose making orders that will see [X] seeing his father regularly if Ms Downes elects to return to live in the south-east of South Australia but not as extensively as Mr Evans would have sought.
In this regard, I propose alternate weekends and on each Tuesday and Thursday afternoon. I assume Mr Evans will be able to get time off work. I will also put in place some arrangement for Christmas.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: J Williams

Date: 16 December 2009