Faretta & Laclair

[2021] FCCA 797

FEDERAL CIRCUIT COURT OF AUSTRALIA

Faretta & Laclair [2021] FCCA 797

File number(s):	MLC 9742 of 2020
Judgment of:	JUDGE BENDER
Date of judgment:	22 April 2021
Catchwords:	FAMILY LAW –Parenting –relocation – Applicant Mother’s Application to relocate from City B to Suburb C with the parties’ two year old daughter – where Applicant will remain in City B if relocation is not permitted – where the Respondent Mother proposes that it is in the child’s best interests for the Applicant Mother to remain living in City B so that the shared care arrangement for the child can continue – where the parties have agreed on living arrangements should relocation not be permitted. HELD – the Applicant Mother be restrained from relocating with the child from City B to Suburb C – the child spend time with the Applicant Mother and the Respondent Mother in a shared care arrangement as agreed between the parties.
Legislation:	Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 64, 65D
Cases cited:	Fawkner v Kado [2020] FCCA 1535 Heath v Hemming(No.2) [2011] FamCA 749 MRR v GR [2010] HCA 4 Taylor v Barker [2007] 37 Fam LR 461 Tibb v Sheean [2018] FamCAFC 142
Number of paragraphs:	130
Date of hearing:	23 February 2021
Place:	Bendigo
Counsel for the Applicant:	Ms Borger of Counsel
Solicitor for the Applicant:	O’Sullivan Johanson Lawyers
Counsel for the Respondent:	Ms Mallett of Counsel
Solicitor for the Respondent:	Orchard Law

ORDERS

MLC 9742 of 2020

BETWEEN:

MS FARETTA

Applicant

AND:

MS LACLAIR

Respondent

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	22 APRIL 2021

THE COURT ORDERS THAT:

1.The parties have equal shared parental responsibility for the child X born in 2018 (“X”)

2.X remain living within the City B region.

3.X live with the parties on an equal basis by agreement and failing agreement as follows:

(a)until X commences attending school on a rotating weekly basis as follows:-

(i)in week one with the Applicant for three nights from 2:00pm on Sunday afternoon until Wednesday at 11:00am and with the Respondent for three nights from 11am Wednesday until Saturday at 9:00am; and

(ii)in week two with the Applicant from 9:00am Saturday for four nights (at the end of Week 1) until Wednesday at 11:00am and with the Respondent for four nights from Wednesday at 11:00am until 2:00pm on Sunday.

(b)upon X commencing school with each of the parties on a week about basis with changeover occurring at 5:00pm on Sunday.

4.Each of the parties be at liberty to communicate with X by facetime or other electronic means daily at all reasonable times.

5.All changeovers not taking place at school take place at a location or locations as agreed between the parties and failing agreement a location equidistance from the parties respective residences.

6.Each of the parties be permitted to travel with X interstate and internationally at all times X is in their respective care and further at all other times as agreed between the parties in writing provided that:

(a)the travelling parent give 21 days’ notice of such intended travel; and

(b)the travelling parent provide the other with contact information for the child and an itinerary of the locations visited 14 days’ prior to departure.

AND THE COURT NOTES THAT:

A.Although neither party pursues any application with respect to the donor sperm or embryos stored at the D Fertility Clinic, the Applicant is willing to sign over to the Respondent the embryos and the Respondent is willing to sign over the sperm in the event that such request is made.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE BENDER:

Introduction

1. This is a parenting matter in respect to the parties’ daughter X born in 2018 (“X”).

2. The parties were in a same sex relationship between 2017 and April 2019.

3. To their absolute credit, the parties were able to agree on parenting arrangements for X fairly soon after their separation and those arrangements continue to this day. X is in a shared care arrangement with her Mothers. She spends 9 nights and 5 days with the Applicant and 5 nights and 9 days with the Respondent each fortnight.

4. The Applicant has been in a relationship with her now partner Ms E since 2019. Ms E lives in Suburb C with her 3 year old son F.

5. The Applicant is seeking orders that she and X be permitted to relocate to Suburb C so that she can live with Ms E.

6. In the event relocation is allowed, the Applicant proposes X live with her and spend time with the Respondent on alternate weekends from 5:15pm on Friday to 4:00pm on Sunday, all long weekends during school terms, half of all school holidays and on special occasions.

7. The Respondent opposes the Applicant and X moving to Suburb C. She seeks the Respondent and X remain living in City B and there be a shared care arrangement.

8. The Applicant has advised the Court that if X is not permitted to relocate to Suburb C, she will remain living in City B.

9. The parties have agreed to X’s living arrangements in City B in the event relocation is not allowed.

   Background

10. The Applicant was born in 1992 and is aged 29 years. She is a public servant with Employer G and is currently working part time. As noted, she has re-partnered with Ms E.

11. The Respondent was born in 1989 and is aged 32 years. She is a public servant with Employer G. She has re-partnered with Ms H. Ms H has 2 children, J who is 7 years old and K who is 5 years old. Ms H has an amicable shared care arrangement with her former partner, Ms L.

12. In the Family Report prepared by Ms M, the Respondent and Ms H described Ms L as a significant family member with whom they co-parent and frequently socialise.

13. X calls her Mothers, their partners and Ms L all “Mummy” and identifies them by derivatives of their given names.

14. The parties met in early 2017. The Applicant was then working at Suburb N. In 2017 she obtained a transfer to City B.

15. The parties decided to have a child through IVF in 2017. X was born via a procedure known as partner IVF. This procedure involved eggs from the Respondent being fertilised by donor sperm. A fertilised egg was implanted in the Applicant who gave birth to X.

16. If used, the remaining frozen fertilised embryos will produce full siblings of X. By agreement the frozen embryos are to be retained by the Respondent.

17. After X’s birth the Applicant took seven months maternity leave, returning to work on a part-time basis in early 2019. The Respondent took maternity leave from 2018 to early 2019.

18. The parties separated on 23 April 2019. The Applicant initially remained in the family home.

19. After separation the parties had an ad hoc, amicable and flexible parenting arrangement for X’s care that was very much structured around their work commitments. X attended child care two days a week and assistance was given to both parties by the Respondent’s extended family who live in City B.

20. The parties attended mediation at O Counselling, City B in July 2019 where they reached agreement that is reflected in X’s current care arrangements.

21. The Applicant first raised the possibility of relocating with X to Suburb C in February 2020. The Respondent advised the Applicant that she did not agree to X relocating.

22. The Applicant filed an Initiating Application on 8 September 2020 seeking to relocate with X to Suburb C. Her Application sets out her proposals for the time X spend with the Respondent in the event relocation is allowed.

23. The Respondent filed a Response on 23 September 2020 seeking the Applicant be restrained from relocating with X from City B and setting out her proposals for shared care.

24. On 12 November 2020 Registrar Sudholz listed the matter for hearing on 23 February 2021 in the Bendigo Circuit. The Registrar made interim parenting consent orders that confirmed the existing living arrangements for X.

    The Evidence

25. The Applicant relies on her trial affidavit sworn on 24 January 2021. She also relies on the affidavit of her partner, Ms E, sworn on 24 January 2021.

26. The Respondent relies on her trial affidavit sworn on 3 February 2021. She also relies on the affidavits of her partner, Ms H and her Mother, Ms P, both sworn on 3 February 2021.

27. The parties agreed to conduct the Final Hearing on the basis that the only vive voce evidence given was by the Family Report Writer, Ms M. Otherwise the matter proceeded by way of submissions by Counsel. Neither party wanted to undermine their co-operative parenting relationship by putting the other party or their partners through the rigors of cross-examination.

    The Applicant

28. The Applicant wishes to move to Suburb C to be with her partner Ms E.

29. It is the Applicant’s evidence that Ms E cannot move to City B to be with her. Ms E’s family includes her parents and 6 siblings who all live in Suburb C. Ms E is very close to her family and they assist her with F’s care. Ms E’s former partner, with whom F spends 4 nights each fortnight, is also proximate to Suburb C.

30. Ms E is a carer studying to be a public servant. Her current employer has given her an exemption to work as a public servant whilst she completes her studies and she is paid accordingly. It is the Applicant’s evidence that another employer is unlikely to employ Ms E on the same basis and any move to another employer would likely result in a significant pay decrease.

31. It is the Applicant’s evidence that she has a very good relationship with Ms E’s family. She also has friends in the Suburb C area from when she lived and worked there previously. Her evidence is that she has felt quite lonely and isolated in City B since separating from the Respondent in comparison to when she is in Suburb C.

32. The Applicant applied for a transfer to Region Q Division on 17 January 2020. She was 41^st on the list when she applied and was 19th on the list as of 15 January 2021. The Applicant would be transferred to 1 of 9 locations in the district and cannot say when her application would be successful as transfers depend on vacancies becoming available when others move.

33. The Applicant confirms a co-operative and flexible parenting relationship with the Respondent. They agree the other is the first call if they cannot care for X when she is with them. The Applicant also agrees that the Respondent’s extended family were actively involved in X’s care during the relationship and that they have continued to offer their support post-separation.

34. The Applicant advised the Court that if X is not permitted to relocate to Suburb C, she will remain living in City B.

    The Respondent

35. The Respondent opposes the Applicant’s Application to relocate with X to Suburb C as she does not believe such a move is in X’s best interests.

36. It is the Respondent’s evidence that she and the Applicant have shared X’s care since birth and that X has a close and loving relationship with both her parents.

37. The Respondent’s family, including her Mother, her Mother’s partner, and her 3 siblings all live in City B. They are very close, gathering at one of their homes every Wednesday for dinner.

38. It is the Respondent’s evidence that X has a particularly close and loving relationship with her Mother and her Mother’s partner Mr R. Both parties agree that the Respondent’s Mother has regularly cared for X since birth and has been available to both of them when needed to care for X since separation.

39. It is the Respondent’s evidence that X has a very close relationship with her sister’s son S (X’s cousin). They are only 3 months apart in age and see each other at least once a week.

40. It is the Respondent’s evidence that X has a very close relationship with her now partner Ms H and Ms H’s children J and K.

41. As previously set out in this judgment, the Respondent and Ms H have a very supportive and co-operative co-parenting relationship with Ms L, Ms H’s former partner and parent to J and K.

42. It is the Respondent’s evidence that whilst there were some tensions between herself and the Applicant when they first separated and were initially negotiating X’s living arrangements, they have worked flexibly and co-operatively with each other to co-parent X. X face-times the Mother she is not with twice daily when in the other parent’s care. They care for X if the other is unavailable and both of them attend all of X’s important appointments.

43. It is the Respondent’s evidence that not only would relocation severely disrupt X’s relationship with her, it would disrupt X’s relationship with her Mother, with Ms H, J and K, with the Respondent’s extended family and with the many friends that X has in the City B Community. X has attended the same day care since she was 6 months old and has developed friendships there. She also has a close bond with her carers.

    Ms M

44. Ms M is a Regulation 7 Family Consultant with the Federal Circuit Court. She prepared a Family Report in this matter dated 30 January 2021. Ms M also gave vive voce evidence at the final hearing.

45. In paragraph 31 of her report Ms M notes that the Applicant and Ms E both spoke positively about the Respondent. Ms M states the Applicant and Ms E “reported that she was a “good mum” and identified no safety concerns for X within her care.”

46. Ms M reports that the Applicant emphasised that the Respondent has provided her with significant practical and emotional support and that the communication between the parents was excellent as they were able to communicate effectively regarding X with the exception of X’s parenting arrangements in relation to the Applicant’s proposal to relocate to Suburb C.

47. In paragraph 33 Ms M reported as follows:-

    “33     Consistent with Ms Faretta’s views, Ms Laclair believed that the parents communicated well to make joint decisions in relation to X and that their only issue of disagreement related to Ms Faretta’s intention to relocate with Suburb C, which would significantly reduce X’s time with her and her extended family in City B. Ms Laclair also referred to Ms Faretta as a “good Mum” and expressed no safety concerns for X within Ms Faretta’s care.”

48. In paragraph 35, when discussing X’s relationship with the Respondent’s Mother, Ms M states as follows:-

    “35     While Ms Laclair and Ms H reported that X spends time with Ms Laclair’s large extended family inclusive of aunts, and cousins, they confirmed that X shares a particularly close relationship with Ms Laclair’s terminally ill mother, with whom she spends time approximately twice a week.”

49. When discussing X Ms M describes her in paragraph 58 as follows:-

    “58     … She impressed as a confident and outgoing toddler and quickly engaged with her mothers who had brought a large box of animals with which to play.”

50. Further in paragraph 58 Ms M describes X’s interaction with the Applicant and Ms E in the following terms:-

    “58…Throughout this session both Ms Faretta and Ms E used this time encouraging X to name animals colours and numbers during their imaginary play. X appeared to have an extensive vocabulary and enjoyed identifying the animals with their corresponding noises. Ms Faretta and Ms E eagerly engaged X in imaginary play and remained child focussed during their play. Both women praised X, with Ms E who appeared to be more outgoing and animated, and Ms Faretta tended to engage X more verbally.”

51. Ms M describes X’s interaction with the Respondent and Ms H at paragraph 60 as follows:-

    “60     X’s time with Ms Laclair and Ms H followed a similar pattern to her previous observation session. Ms Laclair and Ms H also commenced their session by engaging in imaginary play with X using the available animals. Ms Laclair and Ms H were also observed encouraging X to name animals, colours and numbers and she was lavishly praised her efforts. When X became bored in imaginary play, Ms Laclair and Ms H encouraged and X to engage in more structured activities such as physical rhyming childhood games which were familiar to X.”

52. In summary Ms M describes her observation sessions in paragraph 61 in the following terms: -

    “61     Within both observation sessions, X was lavished with positive affection and attention by her caregivers. All four (4) women demonstrated an ability to be child-focused, encouraging and engaging with X, which was reflected in the appearance of positive and dependable relationships between X and all four of her caregivers. As identified by the parents, there were no concerns regarding safety concerns for X in the care of either household as within a short space of time, and both parents demonstrated their ability to provide an emotionally safe and stimulating environment for X.”

53. Under the heading “evaluation” Ms M describes X and her current circumstances in the following terms in paragraph 63:-

    “63     X is a dearly loved and cherished toddler, who, according to her parents, is a happy and healthy child exceeding her development milestones and she is currently thriving within the care of her parents, stepparents, stepsiblings and wider family and community networks. There have been no safety concerns raised for X in the care of either household, and apart from the occasional glitch during times of stress, the parents report that they communicate effectively regarding X’s daily care. Despite the parent’s separation and each of the parents re-partnering and integrating new stepsiblings into their families, this assessment has identified that the parents enjoy a high level of trust and respect the other parent and their parenting capacity. Both parents expressed a wish for X to live the best life she can and are motivated to creating a parenting arrangement in her best interests.”

54. Ms M summarised the Respondents position in relation to the proposed relocation in paragraph 66 in the following terms:-

    “66     Ms Laclair is adamantly opposed to X relocating to Suburb C with Ms Faretta which would significantly reduce the amount of time X would practically be able to spend with her and her immediate and extended family. Ms Laclair expressed that she is unable to follow X to the Suburb C area due to her strong family ties in the City B area inclusive of her mother currently living with terminal cancer. Ms Laclair maintains that is not in X’s best interest to be separated from either of her parents as this would cause her significant distress and uproot her current routines and relationships which have assisted her to thrive. Ms Laclair acknowledged that Ms Faretta may believe that it is in her best interests to relocate to Suburb C to pursue her new relationship and take on the primary care of X; however, Ms Laclair denies that there would be any benefit of X relocating to a new area away from her other parent, extended family and community.”

55. Ms M summaries  the Applicant’s position in paragraph 67 as follows:-

    “67     Ms Faretta advocates that X living primarily in one (1) home would be a more stable environment for her than are currently living across three (3) homes in her current routines whereby Ms Faretta and X have been travelling between City B and Suburb C during the time X lives with her. While this appears to be true, it is noted that Ms Faretta has made the decision to travel with X backwards and forwards between Suburb C and City B in order to establish and strengthen a relationship with a new partner, rather than for any tangible benefit to X.”

56. In paragraph 69 Ms M states as follows:-

    “69     There does not appear to be any benefits to X being permitted to relocate from City B to Suburb C other than this would reduce the current travel she is currently experiencing between these two locations. Additionally, an ancillary benefit in permitting X’s relocation may be that one of her parents may feel happier and more supported in solidifying their current relationship. However, it is noted that Ms Faretta is practically support in City B, as she expressed her appreciation that Ms Laclair and her extended family have continually offered to provide practical support for her and X when required.”

1. In paragraphs 71 to 75 Ms M sets out her conclusions in relation to the parties’ proposals and the optimal parenting arrangements for X in the following terms:

   “71     This assessment has highlighted that X appears to be thriving in her current shared care parenting environment. She has developed strong positive relationships with her significant caregivers in addition to developing positive relationships with her stepparents and stepsiblings. X is an intelligent, creative and social girl, who, according to her parents, is doing exceptionally well in childcare and enjoys academic and creative pursuits. X currently has access to a large social and extended family network visiting members of Ms Laclair’s extended family biweekly.

   72       Ms Faretta has suggested that in the event X is permitted to relocate to Suburb C, she is likely to adapt quickly to a new environment and parenting arrangements due to her high resilience. Ms Laclair, on the other hand, suggested that X been separated from either parent for considerable periods of time would be devastating for X, and she is concerned that any disruption or trauma X may experience may affect their long-term relationship she has with significant family members into the future. If Ms Faretta elects to relocate to Suburb C in the future given the geographical location between her parents, by necessity, X’s current shared care parenting arrangement would need to be disbanded and replaced by one of her parents becoming her primary carer and the other parent spending significantly less time with her.

   73       In the event Ms Faretta elects to relocate to Suburb C, and a primary carer needs to be nominated for X, this assessment suggests that X’s primary care should transfer to Ms Laclair. Ms Laclair appears to have a stable environment for X consisting of extensive family supports which have also been available to Ms Faretta. While both parents have re-partnered following the patents’ separation, Ms H has been a long-term family friend and long-term support of the family. In the event Ms Faretta is nominated as X’s primary carer in the context of relocation, Ms Faretta reported that she has a history of depression which is well managed; however, she identified that she requires ongoing practical and emotional support. In the event Ms Faretta and her new partner separate, Ms Faretta (and X) will likely have limited family and community support in Suburb C other than Ms Faretta’s brother.

   74       In the context of an absence of family violence issues, it appears that the best parenting arrangement for X would involve her continuing in some form of shared care parenting arrangement between her two (2) loving and engaged parents.

   75       X is currently moving between her parents every couple of days; however, as she matures, it is likely that she will be able to cope with longer periods of time with each parent. Ms Laclair has suggested X’s parenting arrangement moving to blocks of three (3) nights with one parent and four (4) nights with the other on a weekly basis. This arrangement may be practical until X attends school full-time school, and then it may be more practical for her to spend extended time in each household to facilitate full weekend time with each parent. X spending longer periods of time with each parent may assist Ms Faretta to spend additional time with her partner in Suburb C if she chooses to do so while X is the care of the other parent.”

2. When giving her vive voce evidence, Ms M was very clear that she does not believe that it is in X’s best interests to relocate with the Applicant to Suburb C.

3. It is Ms M’s opinion that it is preferable for X to remain in her current situation, with her current support network and with the shared care of two parents who clearly love her and who are parenting her in a cooperative and flexible manner.

4. Whilst understanding the Applicants desire to move to Suburb C to consolidate her relationship with her current partner, Ms M observed that it was the Applicant who made the decision to have a relationship with someone who lives two and a half hours away from where she and X live and that she has continued that relationship knowing the difficulties that such a relationship involves, both practically and emotionally.

5. Ms M concluded her evidence by stating that X is most fortunate in that she has two excellent parents who should be held up as examples on how to parent after separation in any post-separation parenting courses.

   The Law

6. In this matter the Applicant is seeking to relocate from City B to Suburb C with the parties’ two and half year old daughter X.

7. Whilst relocation cases are often discussed as if they form a discreet subset of parenting cases that should somehow be determined differently to other parenting matters, the jurisprudence makes it clear that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is, by following the legislative framework prescribed under the Family Law Act1975 (Cth) (the “Act”) to determine what orders are in the child’s best interest.

8. The Full Court in Taylor v Barker [2007] 37 Fam FLR 461 at 475, held:

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

9. The Act does not address the concept of relocation. However, over time the superior courts have set out a number of principles to assist Judges when they are dealing with parenting matters where relocation is in issue. In paragraph [44] of Fawkner v Kado [2020] FCCA 1535, Judge McGuire summarised those principles as follows:

   “(a)Relocation matters are to be determined generally in accordance with Part VII of the Act and within the context of making the necessary findings relevant to children's best interests with reference to the factors in s.60CC of the Act but also within the context of s.65DAA considerations of equal time or 'substantial and significant time' and ‘reasonable practicability’;

   (b)The child's best interests remain the paramount but not the sole consideration;

   (c)Neither party bears an onus to establish that the relocation or a continuation of an existing regime will best promote the interests of the child;

   (d)An applicant for relocation need not show 'compelling reasons' in support of the relocation but must, in my view, give or adduce probative evidence which permits the Court, on balance, to find that a parenting order which involves a relocation of a child is in that child's best interest;

   (e)The child's best interest must be weighed and balanced with the open 'right' of a parent’s freedom of movement but such right must ultimately defer to the child's best interest;

   (f)The Court must consider the advantages and disadvantages of each of the parent’s proposals including the proposed relocation and may, if required, formulate proposals itself in the best interests of the child.”

   Best Interests of the Child

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

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

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

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

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

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

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

    (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

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

    (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)parents should agree about the future parenting of their children; and

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

11. Section 60CA of the Act provides that:

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

12. To determine what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.

    Section 60CC (2)

13. Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:

    Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents

14. In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph [104] reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104 His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:

    “(a)s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.

    In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:

    (i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);

    (ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in
    s60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;

    (iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);

    (iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;

    Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.” 

15. The very close and loving relationship that X has with both her Mothers is clearly set out in this judgment.

16. X’s parents separated when she was only 10 months old. Since separation X has lived in what is effectively a shared care arrangement moving regularly between her parents in a flexible and cooperative manner that reflects both X’s age and the reality that her parents, who are both public servants, don’t have regular 9-5 jobs.

17. If X were to relocate from City B to Suburb C with the Applicant it would not be practical for this shared care arrangement to continue and her relationship with the Respondent and other care givers who are currently City B based would be dramatically reduced and those relationships significantly undermined and impacted. This is particularly so given X’s young age.

18. It is the clear evidence of Ms M that relocation is not in X’s best interests.

    Section 60CC(2)(b): the need to protect the child from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence

19. This is not an issue in this matter.

    Section 60CC(3)

20. S60CC3 of the Act sets out the additional considerations the Court must consider when determining what is in X’s best interests. Each of the matters under this section will be considered in turn where applicable to this matter.

    Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

21. Given X’s very young age, this subsection is not relevant.

    Section 60CC(3)(b): the nature of the relationship of the child with:

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

    (ii)other persons (including any grandparents or other relative of the child)

22. X is an extraordinarily lucky young girl. She is surrounded by love.

23. X’s close and loving relationship with her parents is well documented in this judgment.

24. X also has really close and loving relationships with her parents’ now partners as well as her parents’ now partners’ young children.

25. X also has very positive relationships with her parents’ now partners’ former partners. The parties in these proceedings and their now partners have shown an extraordinary capacity to ensure that they have positive co-parenting relationships with the parents of their children.

26. In addition, the Respondent’s family, and particularly the Respondent’s Mother, have a very special relationship with X as the Respondent’s family have been a real support to the parties in these proceedings by providing care for X when their work and other commitments has required that assistance. That assistance has continued to be provided to the Applicant and the Respondent post-separation.

27. X has lived in City B all her life, she has developed relationships with the friends of her parents. X has also been attending the same childcare centre since the age of 6 months and currently attends 3 times per week. As a result X has developed friendships and relationships with the other children and the carers at the childcare centre.

28. The Applicant travels with X to Suburb C as often as she can around her work commitments. X is therefore developing positive relationships with the Applicant’s partner’s family who are based in Suburb C.

    Section 60CC(3)(c): the extent to which each of the child’s parents has taken or failed to take the opportunity:

    (iii)to participate in making decisions about major long-term issues in relation to the child; and

    (iv)to spend time with the child; and

    (v)to communicate with the child

29. Ms M describes X’s parents as two excellent parents who should be held up as examples on how to parent after separation for post-separation parenting courses. I agree with her.

30. Despite the stressors of separation, the Applicant and Respondent have co-parented X in a child focussed, cooperative, flexible and sensitive way and have a daughter who is happy, well-adjusted and quite delightful. She is surrounded by love and is secure in her relationship with her parents.

    Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the child

31. Not relevant.

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

    (vi)either of the child’s parents; or

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

32. If X relocates to Suburb C with the Applicant it will not be possible for her to continue to have the shared care of both her parents, or the relationship she currently has with the extended family of the Respondent.

33. By necessity X’s time in City B would be reduced to alternate weekends. This would have an enormous impact on the current relationships that X has with the Respondent, the Respondents now partner and children, her extended family and her City B based community.

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

34. As noted, relocation for X to Suburb C will create considerable practical difficulties in enabling X to spend time with the Respondent in City B.

35. It is the Applicant’s evidence that she and X travel to Suburb C as often as they can in order for them to be with the Applicant’s partner Ms E and Ms E’s son F.

36. This would appear to involve X travelling to and from Suburb C once or twice a week. The Applicant’s evidence is that X manages this level of travel very well at this time.

1. However, when X starts kindergarten and progresses to school such travel will not be at all practical.

2. Whilst not raised by the parties, the Court questions that if relocation is allowed, is it possible there will be weekends when X is with the Respondent in City B that the Respondent will be rostered to work. If so, this would further impact the time X would be able to spend with the Respondent.  

   Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs

3. As has been noted throughout this judgment, these parties are exemplary parents who have and  will continue to meet the practical, emotional, intellectual and developmental needs of their daughter.

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

4. X is only two. She is in the process of developing and consolidating her attachment with her primary carers. Whilst neither parties Counsel sought to lead evidence from the expert witness on this issue, X’s capacity to maintain her relationship with the Respondent if relocation is allowed, given her very young age, is something that troubles this Court.

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

5. As has been set out in detail in this judgment, these parties are brilliant parents.

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

   Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the   order;

   (v)any other relevant matter

6. These subsections are not relevant.

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

7. Were it not for the Applicant seeking to relocate to Suburb C, it is very unlikely these parties would have been involved in Court proceedings.

8. The Applicant has advised the Court that if X is not permitted to relocate to Suburb C from City B that she will remain in City B with X.

9. The Court has been handed a minute of the orders that both parties agree are to be made by the Court in the event that relocation is not allowed. These proposed orders are child focused and in X’s best interests and is a prime example of the parties’ focus on X’s best interests.

   Section 60CC(3)(m): any other factor or circumstance that the Court thinks is relevant

10. Both parties are in agreement that if relocation is not allowed a shared care arrangement will be in place for X.

    Presumption of Equal Shared Responsibility and the Consideration of Equal or Substantial and Significant Time

11. The Full Court in the matter of Taylor v Barker (supra) stated at paragraph [60]:

    “In our view his honour dealt with the relocation proposed in the context of his consideration of section 60CC and section 60DAA, at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should be considered and evaluated, so far as possible in the context of the making of the necessary findings in relation to the relevant s60C matters; however…such a proposal now also needs to be considered in the context of s60DAA”.

12. Section 61DAA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.

13. In this matter both parties are in agreement that orders should be made that they have equal shared parental responsibility for X.

14. Given the parties proven capacity to co-parent cooperatively and in a child focussed manner there is absolutely no question that an order for equal shared parental responsibility should be made.

15. Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.

16. Section 65DAA(1) provides as follows:

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

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

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

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

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

    2.        If:

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

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

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

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

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

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

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

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

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

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

    (i)        the child’s daily routine; and

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

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

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

    5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

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

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

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

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

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

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

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

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

21. The High Court then held at paragraph [13]:

    “Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

22. The High Court further held at paragraph [15]:

    “Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”

23. The Court must therefore consider not only whether it is in the child’s best interests to spend equal or significant and substantial time with each of their parents but also whether it is reasonably practicable for the child to do so.

24. If relocation is not allowed, the parties agree that X will live equally with both of her parents.

25. If relocation is allowed it will be impractical for X to spend either equal time or substantial and significant time with the non-resident parent.

26. The question for the Court is which outcome is in X’s best interests; her remaining where she is with both of her parents able to be equally involved in her life, or a relocation which would allow the Applicant greater happiness but will of necessity significantly reduce the time X can spend with the Respondent and greatly limit the Respondent’s capacity to be actively involved in all aspects of X’s life.  

    Conclusion

27. Relocation cases can be amongst the most difficult matters to determine. As a matter of practicality they may result in a decision which sees a child living a considerable distance from one of their parents and therefore limiting the amount of time that child can spend with their non-resident parent and the level of involvement that non-resident parent can have in their child’s day to day activities. Alternatively, refusal to allow a parent to relocate can result in that parent being left unhappy and in distress that their dreams and plans for the future have been frustrated.

28. Whatever the decision, there is a reality that one or other of the parents is going to be unhappy and left with a real sense of loss.

29. At the centre of this case is a much loved little girl, the parties’ two year old daughter X. Since her Mothers separated, she has lived in a shared care arrangement and has had the benefit of positive relationships, not only with her parents, but with her extended family and with both of her parents’ new partners and their extended families.

30. The Applicant now wishes to have the opportunity to move to Suburb C from City B in order to consolidate and cement her relationship with her now partner Ms E.

31. The practical reality of such a move would mean that X would no longer be able to have the same level of the love, care and support of the Respondent, the Respondent’s now partner, the Respondent’s extended family and the community in which X has lived throughout her life to date.

32. To their absolute credit, X’s parents have ensured that despite the breakdown of their relationship they have put in place arrangements that have seen X thrive. They have been the poster pin up examples of how to co-parent a child after separation. They have worked cooperatively, flexibly and in a totally child focussed manner to ensure that X has only known love and support. Further, both parties’ new partners have also supported this manner of post-separation parenting such that X currently has five “mums”. I don’t think I have ever encountered a child so loved.

33. It is the clear evidence of the Family Report Writer Ms M that relocation is not in X’s best interests. Ms M is quite adamant that a continuation of the shared care arrangement that exists in City B will continue to see X thrive. It would ensure the active involvement of both X’s parents in all aspects of her life and that she continues to have the love and support of her extended family, something that she has known all her life.

34. To her credit the Applicant has advised the Court that if X is not permitted to relocate to Suburb C then she will remain in City B. She, like the Respondent, wishes to ensure that she continues to be totally involved in all aspects of X’s growth and development.

35. Whilst I understand the Applicant’s wish to be able to live with her partner in Suburb C I am of the view that such a move is not in X’s best interests. X has thrived and is thriving in the shared care of her parents. If she relocates to Suburb C it will not be possible for her to spend other than very limited time with the Respondent. Further, she will lose the regular involvement of the Respondent’s partner, the Respondent’s partner’s children, the Respondent’s extended family and, most importantly, the Respondent’s Mother who has been such an important figure in her life.

36. Another reason that relocation is not in X’s best interest is her very young age. She is only two. To disrupt her attachment to the Respondent at this very young age cannot be seen to be in her best interests. If X only spends time with the Respondent on alternate weekends, such limited time raises a genuine concern that X would be unable to maintain the very close, loving and meaningful relationship that she currently has with the Respondent.

37. For these reasons I am of the view that relocation to Suburb C should not be allowed and that X’s best interests are met by both her parents continuing to live proximate to each other. This will enable the parties’ agreed shared care arrangement to be put in place which will ensure X continues to have both of her parents involved in her day to day life, activities and adventures.

38. For these reasons orders will be made for X to remain living within the City B region and that her living arrangements reflect the agreed minutes both parties seek the Court make in the event presented to the Court by both parties.

I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender.

Associate:

Dated:       22 April 2021