FARRELL & CHAMBERS

[2016] FCCA 10

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARRELL & CHAMBERS [2016] FCCA 10

Catchwords:
FAMILY LAW – Parenting – 7 year old child – Father seeks to restrain Mother from relocating Child’s residence to Melbourne – residence with Mother not in issue – relocation not recommended by Family Consultant – Mother’s need for support not being met in Sydney – relocation permitted.

Legislation:

Family Law Act 1975, ss.4,60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAC, 68B

MRR v GR [2010] HCA 4
Sayer & Radcliffe & Anor [2012] FamCAFC 209

Applicant: MR FARRELL

Respondent: MS CHAMBERS

File Number: SYC 2595 of 2012

Judgment of: Judge Sexton

Hearing dates: 26, 27 and 28 October 2015

Date of Last Submission: 28 October 2015

Delivered at: Sydney

Delivered on: 8 January 2016

REPRESENTATION

Counsel for the Applicant: Mr Millar

Solicitors for the Applicant: Hilton King Lawyers

Counsel for the Respondent: Ms Christie

Solicitors for the Respondent: Parker Law

IT IS NOTED that the Court made a number of final orders by consent on 28 October 2015.

FURTHER ORDERS:

1. The parties have equal shared parental responsibility for the Child X born (omitted) 2008.

2. To facilitate consultation in accordance with Order (1), each party acknowledge receipt of any request relating to major decisions from the other party within 3 days of receiving such request, and respond within 14 days.

3. The Mother be permitted to relocate with X to Melbourne, Victoria after 15 January 2016.

4. Whilst she remains living in New South Wales, unless otherwise agreed,  X spend time with the Father during school terms as follows:

   (a)Each Saturday from 4.30p.m. to 4.30p.m. Sunday; and

   (b)Each Wednesday, from after school until the commencement of school on Thursday.

5. X spend time with the Father during her first and second school terms in Melbourne, as follows:

   (a)At all such times as the Father is in Melbourne for up to 36 hours at times to be agreed, provided that the Father gives the Mother not less than 48 hours’ notice in writing;

   (b)On the second and sixth weekends of the school term in Sydney, arriving in Sydney by midday Saturday and leaving by 3.30p.m on Sunday;

   (c)On the fourth and eighth weekends of the school term in Melbourne, from 10.00a.m. Saturday until 5.00p.m. Sunday.

6. From the commencement of her third school term in Melbourne, unless otherwise agreed, X spend time with the Father as follows:

   (a)At all such times the Father is in Melbourne for up to 48 hours at times to be agreed, provided that the Father gives the Mother not less than 3 days’ notice in writing;

   (b)On the second and sixth weekends of the school term in Sydney, arriving in Sydney by 7.00p.m. Friday and leaving Sydney by 3.00p.m on Sunday;

   (c)On the fourth and eighth weekends of the school term in Melbourne, from after school Friday until 5.00p.m. Sunday.

7. For the purpose of the preceding Order, the Mother:

   (a)Arrange for X to travel to Sydney on the second and sixth weekends of each term to spend time with the Father; and

   (b)Make X available to spend time with the Father in Melbourne on the 4^th and 8^th weekends of each term.

8. For the purpose of these Orders, the Father:

   (a)Give no less than 10 days’ notice in writing to the Mother if he is not available to spend weekend time with X and pay the cost of any ticket cancellation and re-booking fees incurred by the Mother in the event she needs to change flight bookings;

   (b)Collect X from the Mother’s residence or X’s school at the commencement of the time in Melbourne and return X to the Mother’s residence at the conclusion of the time in Melbourne;

   (c)Collect X from Sydney airport at the commencement of the time in Sydney and return X to Sydney airport at the conclusion of the time in Sydney.

9. The Mother pay and be responsible for the cost of X’s travel to Sydney and return, twice per school term and twice per year for school holidays.

10. The Father otherwise collect and deliver X at the commencement of time from her school or the Mother’s home (as applicable) and to the Mother’s home at the conclusion of each period of time, unless otherwise agreed.

11. Unless otherwise agreed, the Father have telephone or skype/facetime contact with X each evening (on days she has not spent time with him) between the hours of 6.00p.m and 7.00p.m when the Mother will assist X to call the Father.  

12. Unless otherwise agreed, the Mother have telephone or skype/facetime contact with X between 6.00and 7.00p.m. on Saturday evenings when in the Father’s care on a weekend, and every second day during school holidays between 6.00p.m. and 7.00p.m. when the Father will assist X to call the Mother.

13. Each party advise the other of X’s holiday destinations in writing prior to the relevant holiday period.  

14. The Father enrol in and complete in the first six months of 2016 a post separation parenting course with either Relationships Australia, Unifam, CatholicCare, or Interrelate and upon completion provide independent verification to the Mother of completion of the course.  

15. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2595 of 2012

MR FARRELL

Applicant

And

MS CHAMBERS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case concerns parenting arrangements for the parties’ only Child X, aged 7 years. The parties agree that X will live primarily with the Mother. The Father seeks to restrain the Mother from relocating X’s place of residence from Sydney. The Mother seeks an order permitting her to relocate with X to Melbourne. The parties have never married.

2. X was 3 year of age when the parties separated under the one roof in late 2011, and 4 years of age when the Father vacated the home in August 2012. X remained living with the Mother in the parties’ rented (omitted) home, and spent regular weekend time with the Father. In April 2014, X and the Mother moved to a 3 bedroom rental apartment in (omitted) which the Mother shares with a friend. The Father is living in a 2 bedroom unit he purchased in (omitted) in August 2013, approximately 10 minutes drive from the Mother.

3. The Father says he first became aware of the Mother’s wish to move with X to Melbourne when he read her affidavit sworn in August 2014. The Mother says they discussed the move in November 2013.  

4. Neither party has re-partnered. 

Background facts

1. The parties met in (omitted) 2005 and commenced living together in (omitted) in (omitted) 2007. X was born on (omitted) 2008.

2. The parties separated on 27 November 2011. Final property Orders were made by consent on 21 November 2012.

3. The Mother is 38 years of age and has lived in Sydney for 15 years. She has recently completed a (qualifications omitted) at the (school omitted). She hopes to find work in the (omitted) sector next year, and to undertake a degree through the (omitted) University. The Mother lost her own mother when she was a child. The Mother and her brothers were then cared for by her mother’s then partner, Mr P (“Poppy Mr P”), and his family (hereinafter referred to as the Mother’s father). Mr P’s sisters, Ms J and Ms S, live in Melbourne approximately 15 minutes from each other. The Mother’s only family in Sydney is Mr P, who lives nearby in (omitted), but is now suffering from Parkinson’s disease and considering a move to Melbourne on retirement next year.

4. The Father is 47 years of age. He is a (occupation omitted) in a (employer omitted) company and works Monday to Friday between the hours of 8.00a.m and 6.00p.m, with some flexibility. He purchased his unit in (omitted) in August 2013. The Father has a 12 year old son, Y, from a previous relationship. The Father has only recently re-established contact with Y who lives in Melbourne with his mother. The Father had a brief relationship with Y’s mother, saw Y as a baby a few times and then lost track of the mother for 10 years. The Father says he has always paid child support for Y. X is not aware that she has a half-brother.

5. Both parties are recovering alcoholics and attend Alcoholics Anonymous regularly. The Father has been abstinent for 26 years, and the Mother for 14 years.

6. X started school in 2013 at (omitted) Public School, and was in Year 2 at the time of hearing. The school is located approximately 2 kilometres from her residence. The Mother takes X to (hobby omitted) lessons on Tuesday afternoons, (hobby omitted) classes on Thursday afternoons and (hobby omitted) on Monday afternoons.

7. Both X and the Mother suffer from anxiety.

Care arrangements after August 2012

1. It is common ground that from August 2012, when the parties started living in separated homes, X was primarily cared for by the Mother. Until approximately mid-2013, the Father looked after X every Tuesday and Thursday evening to enable the Mother to attend Alcoholics Anonymous or Narcotics Anonymous meetings. The Father says he would arrive at the Mother’s home at approximately 5 p.m. and the Mother would often leave for her meeting at 7 p.m. The Father would give X dinner prepared by the Mother and put X to bed. The Father says he found the Mother too controlling of his interactions with X, and in mid-2013 she accused him of removing some photographs from the home. As a result, he stopped caring for X on Tuesday and Thursday evenings. This made it difficult for the Mother to attend the meetings she needed for support.

2. X also spent time with the Father on weekends from 4.30p.m. Saturday until 5.30p.m. Sunday and on occasions from Friday night until Sunday night. X spent two periods of 3 nights with the Father in January 2013, two weekends in the April 2013 holidays and 2 weeks in January 2014. In the April 2014 school holidays, the Father took X to (country omitted) for a week to visit his father.

3. Until April/May 2015, the Mother says the Father rarely spent any weekday time with X and rarely telephoned her.

Current arrangements

1. The current parenting arrangements are set out in the Interim orders of 29 July 2015, made by consent. X lives with the Mother and spends time with the Father during school terms each Wednesday night until Thursday before school, and each weekend from 4.30p.m. Saturday until 4.30p.m. Sunday. X also spends time with the Father during school holidays.

Orders sought by Mother

1. The Mother seeks Orders[1] providing for X to live with her, and to be permitted to relocate with X to Melbourne. She seeks an order for equal shared parental responsibility save as to an additional order about decision making:

   That provided the Mother gives the Father notice of any school counsellor; psychologist; counselling programme or group; and/or academic tutoring at least 7 days in advance of any appointment, the Mother be permitted to facilitate X’s involvement/participation.

   While X remains living in Sydney, the Mother seeks orders providing for X to continue spending time with the Father in accordance with the current interim orders. Once X relocates, and until she attains the age of 10 years, the Mother seeks orders for X to spend time with the Father in Sydney during school terms for two weekends a term from 10.00a.m Saturday morning until 3.00p.m Sunday afternoon (on the second and sixth weekends) and in Melbourne for two weekends a term from 10.00a.m Saturday morning until 4.30p.m Sunday afternoon (on the fourth and eighth weekends). She would facilitate X spending additional time with the Father in Melbourne at any other time for up to 36 hours provided the Father gives her 48 hours’ notice. Once X attains 10 years, the Mother proposes that X spends time with the Father for two weekends a term in Sydney, from Friday afternoon to 3.00p.m on Sunday afternoon, and two weekends a term in Melbourne from Friday afternoon to 4.30p.m Sunday afternoon. The Mother proposes that she be responsible for the costs of X’s return travel to Sydney twice a term, and twice a year during school holidays. She proposes that X’s time with the Father be suspended on the Mother’s birthday, Mother’s Day and for the (hobby omitted) as long as the Mother’s father remains living in Sydney. She proposes that the Father give her no less than 10 days’ notice if he is not available to spend weekend time with X and pay the cost of any ticket cancellation and re-booking fees incurred by the Mother if she needs to change the flight bookings; that the Father collect X from the Mother’s home or X’s school at the commencement of his time in Melbourne and return X to the Mother’s residence at the conclusion of the time; that the Father collect and deliver X to and from Sydney airport on her weekends in Sydney.

   [1] Exhibit 2A

2. The Mother says she would remain living in Sydney with X if not permitted to relocate X’s residence to Melbourne.

Orders sought by Father

1. The Father seeks orders[2] for equal shared parental responsibility and for X to live with the Mother. He seeks an order that the Mother be restrained from relocating X’s residence outside the Sydney Metropolitan area without his prior written consent.He seeks orders providing for X to spend time with him from Thursday after school until the commencement of school Monday morning each alternate week, for one week in each of the short school holidays and for two weeks in the Christmas school holidays, to coincide with the Christmas period each alternate year. He proposes that X spend time with him on Father’s Day and on Christmas Day in the Mother’s year for Christmas, if the Mother and X will be in Sydney on Christmas Day. He seeks to restrain the Mother from contacting him during X’s time with him, unless an emergency, but proposes that he facilitate X telephoning the Mother once during alternate weekends and twice a week during school holidays.

   [2] Exhibit 3

2. In cross examination, the Father says that if X were living in Melbourne, he would visit Melbourne as often as he could, spend as much time with her in Sydney as ordered by the Court, and would ensure he was in X’s life as much as possible. He says he would do all he could to maintain X’s strong relationship with him.

Consent orders

1. During the course of the hearing, the parties agreed to a final order for X to live with the Mother. They agreed on how much time X would spend with each party during school holiday periods, and on special days. They agreed on orders in relation to information sharing, to certain restraints including a restraint on the Father from leaving X in the sole care of his mother or her partner. They agreed on orders relating to overseas travel. These orders were made by consent on a final basis on the final day of hearing.

Issues

1. The Court is asked to determine the relocation issue and how much time X should spend with the Father.  

Expert recommendations

1. Ms R, Family Consultant, prepared a report for the Court.[3] She conducted interviews in December 2014. In her report dated January 2015, Ms R recommended that X remain living with the Mother in Sydney and that she spend each Wednesday overnight and each Saturday overnight with the Father. She recommended that the Wednesday overnight start immediately and that X otherwise remain in her weekly weekend arrangement extended to a full day from Saturday afternoon until Sunday at 6 p.m. She recommended that after 3 months, X’s time on weekends be varied to alternate weekends, rather than each weekend, from Friday after school until Sunday at 6.00p.m. She recommended that X be helped by attending the (omitted) Anxiety Clinic or other similar service, and that both parents be involved in any such program to assist X’s anxiety. She recommended that the parties share parental responsibility for X. In her evaluation, Ms R said:[4]

   X would benefit from the balance of having both parents with their different parenting styles provide the regular care for her in Sydney. Both parents supporting X’s needs and anxieties as she grows up would be most beneficial to her.

   ….

   On balance, the impact on X of the reduction of her time with her father if she were to be able to relocate to Melbourne with her mother, is considered to be potentially a greater risk for X’s long term emotional and developmental outcomes than the impact on Ms Chambers, and hence, X, of having to remain in Sydney.

   [3] Exhibit 1

   [4] At paragraphs 69 and 71 of Exhibit 1

2. Ms R’s recommendation to start Wednesdays overnight was implemented by consent when interim orders were made in July 2015. Those arrangements result in 8 changeovers a fortnight. Ms R was asked by the Father’s counsel whether it would be in X’s best interests to change to a 4 night block period on alternate weekends, involving two changeovers a fortnight. Ms R said that because communication between the parties appeared to have become more strained, fewer changeovers might be helpful for X. However, Ms R did not support the 4 night block proposed. While in her opinion X could manage more time with the Father, perhaps two nights consecutively, she said any further increase should be graduated. She recommended one overnight with the Father in the alternate week continue. She supported X spending half school holidays with the Father.

3. However, Ms R says the Court must make the findings of fact. If the preponderance of the evidence is that the Mother will benefit from the move, then her recommendation will not necessarily stand.[5] At the time of interviews, the Mother was proposing X spend one weekend a term in Sydney with the Father. By the time of hearing, the Mother’s proposal had changed to two weekends a term in Sydney as well as additional time in Melbourne. Ms R noted that this would still mean a considerable reduction in the time she presently spends with her Father in Sydney. She said such a reduced frequency of time may reduce X’s ease in settling in to her Father’s household and adversely affect the familiarity of coming back to her Father. Ms R says this is a difficult process for a child, particularly a child with additional issues like X. She said that even if the Father travelled to Melbourne, X would be having time there at an unusual or strange venue.[6] Ms R was, however, not aware that X has spent weekends with the Father in (omitted) and in (omitted).

   [5] At page 26 of transcript of proceedings on 26 October 2015

   [6] At page 32 of transcript of proceedings on 26 October 2015

Legal principles

1. Relocation cases are not a separate category within the Act to be determined by their own principles and rules. Each is a case under Part VII of the Family Law Act 1975 relating to the best interests of the child. As the Full Court said in Sayer & Radcliffe & Anor[7]:

   It is now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders…the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.

   [7] Sayer & Radcliffe & Anor [2012] FamCAFC 209 at paragraphs 47 & 48

2. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration. To determine the child’s best interests it must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination.

1. The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give greater weight to the second primary consideration.[8] The primary considerations are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard.

   [8] Section 60CC (2A), Family Law Act 1975 (Cth)

2. The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:

   ·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

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

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

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

3. The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Injunction sought by Father

1. The Father seeks an order in these terms[9]:

   That the Mother be restrained from relocating X’s residence outside the Sydney metropolitan area without the Father’s prior written consent.

   [9] Exhibit 3

2. As acknowledged by counsel for both parties, even though the Mother will remain X’s primary carer whether or not the relocation occurs, sections 68B(1) and 65D(1) of the Family Law Act 1975 give the Court the power to restrain the Mother from relocating X’s residence.

3. The question is whether the Court should exercise its power in the circumstances of this case.

The Mother’s circumstances

1. The Mother described her troubled upbringing to Ms R. Her parents separated before she was born, and her mother died of a haemorrhage as a result of alcoholic complications when she was young. As noted, her father took on the responsibility of raising her and her two brothers. She met her biological father when she was 13 years of age and lived with him for 3 to 4 years as a young teenager. Her father also had difficulties with alcohol and died when she was 25 years of age. The Mother began drinking at 14 years of age and stopped at 24 years of age, assisted by treatment.  

2. The Mother told Ms R she wants to relocate to Melbourne because of lack of family support in Sydney and financial constraints. She cannot afford to buy a home in Sydney, but believes ultimately she may be able to do so in Melbourne. The Mother says the Father completed his (qualifications omitted) during their relationship and the parties agreed that she would then complete her course in (studies omitted), which she started before X was born. She was required to complete 260 hours of work placement. As a result of the Father’s refusal to care for X when she was sick and not at school, (telling her X was not sick and should not miss school) she says she had to take time off her work placement to care for X.

3. While the Mother knows the Father’s mother loves X and describes her as a “nice person”, she does not support her caring for X alone because of her history of alcoholism.[10] The Father acknowledges that the Mother could not rely on his mother or her partner, or his sister Ms K, for support. His mother and her partner have a history of addiction to alcohol or drugs, and his sister is critical of the Mother’s parenting and not always available.  

   [10] Exhibit 1 at paragraph 29

4. I accept that the Mother’s support network in Sydney is limited. Ms K, the Father’s sister, reports the Mother saying to her during the relationship that she needed more help, and did not have a support network in Sydney. Ms K is critical of the Mother because she believes the Mother would not let others care for X even when help was offered. Ms K believes the Mother needed company more than she needed help with X’s care. Ms K stopped spending time with the Mother and X because she says the Mother was critical of her family, though Ms K did intermittently look after X. After separation, Ms K babysat irregularly for the Mother, but over time that became less frequent. In October 2012, X started sleepovers which have occurred approximately 6 times. Ms K is highly critical of the Mother, has had almost no communication with the Mother for the last 12 months, and sees X approximately fortnightly with the Father. She has not contacted the Mother to offer help with X. Ms K says the Mother has always found her parenting role hard with so little support in Sydney. I accept Ms K’s evidence.

5. I accept Ms R’s opinion that the Mother suffers from anxiety, and that if the Mother’s anxiety is alleviated then there will be positive benefits for X’s anxiety.

The Father’s proposal

1. On the Father’s proposal, X will live with the Mother in the Sydney Metropolitan area and spend time with him during school terms on alternate weekends from Thursday after school until Monday before school, as well as half short term school holidays and 2 weeks in the Christmas school holidays. There will be occasions when he will need to use before and after school care for X when he is working. He has enrolled her in (omitted) at (omitted), 5 minutes from her school, where she has already spent regular time. The Father does not address the possibility of the Mother remaining in Sydney, but living much further away from him and (omitted) Public School.

2. If X is living in Melbourne, the Father would visit her in Melbourne when possible and accept as much time as offered in Sydney. In cross examination he said “I would make sure I was in her life as much as possible.” However, he told Ms R he rarely works in Melbourne, has no family or community ties in Melbourne and would have to use a motel for their time together. This would not be ideal for X and also expensive. There is no evidence before the Court that the Father would consider living in Melbourne if X were living there.

The Mother’s proposal

1. The Mother says that if permitted to relocate, she and X would live initially with her aunt Ms J at (omitted), a suburb of Melbourne, and when X is settled in 3-6 months, she would seek independent accommodation in the area. She would rent for $295 to $390 a week, similar to her rent in Sydney for shared accommodation. (omitted) is approximately an hour from Melbourne airport. Her aunt lives alone in a 3 bedroom home and is the (occupation omitted) of a (employer omitted). The Mother and X have stayed with her every year since X was born. The Mother hopes to find work in the (omitted) sector, and has plans to undertake a (omitted) degree at university.

2. The Mother feels unsupported in Sydney. She describes dysfunctional communication and ongoing conflict with the Father, which she doubts will improve. While she has called on local friends to look after X on occasions, she has no reliable support. The Father has rarely been able to care for X when she has been too ill to go to school, and not responded to the Mother’s requests for help in an emergency. As acknowledged by the Father, the Mother cannot call on his extended family to care for X. The Mother’s only family here is her father who suffers from Parkinson’s Disease with other health issues, and is likely to move to Melbourne when he retires in a year or so. While they have meals together, her father is not fit enough to look after X and he will need increasing support as his health deteriorates. The Mother’s extended family support is otherwise all in Melbourne including her brother Mr S, her Aunt Ms J and Ms S, and her cousin Ms B, Ms S’s daughter, aged 20 years. Her brother and two aunts gave evidence at the hearing and offered to provide the Mother with emotional and practical support if she is permitted to relocate. X knows all of them, particularly the Mother’s brother, with whom she has spent a lot of time.

3. Ms J, aged 62 years, is the Mother’s father’s sister. She is in full time employment as a (occupation omitted), but intends to retire in 4-5 years’ time. X and the Mother have stayed with her over the Christmas/January period for the last 3 or 4 years. Ms S takes leave from work to spend time with them and has arranged playdates for X with children in the area. She has been to Sydney once since X was born to spend time with the Mother and X. She confirms that X and the Mother can stay with her until the Mother can find alternative accommodation. Children in Ms S’s street attend both the local primary schools. She will provide the Mother with emotional support and help to care for X when not working. 

4. Ms S, aged 57 years, Ms J and Mr P’s sister, has known the Mother for more than 30 years and has spent time with her on the Mother’s visits to Melbourne. She and the Mother often speak on the phone. She regards herself, and her sister Ms J, as surrogate mothers to the Mother, and says they provide the Mother with emotional support. Ms S lives in (omitted), Victoria with her de facto partner. She has a daughter, Ms B 20 years of age, and 4 adult step children. She is a carer for her 90 year old mother whom she visits twice a day. Ms S is on a contract as a (occupation omitted) in a (employer omitted), 20 hours a week, and a (occupation omitted) at (employer omitted) on Saturdays from 2 – 7 p.m. If her contract as a (occupation omitted) is not renewed, she intends to work more hours at (employer omitted), probably in the evenings. Ms S believes she can assist the Mother with X after school and on weekends, and may be able to help with X’s transport to and from school depending on the school she is assigned to in 2016. She believes she can provide occasional respite for the Mother and help in emergencies.

5. Mr S is the Mother’s brother, aged 37 years. He moved from Sydney to Melbourne in (omitted) 2012 and now lives in (omitted), though plans to move closer to the (omitted) area at the end of 2015. He describes a close loving relationship with the Mother, and they talk regularly on the phone. Mr S has been in Sydney for Christmas for the last 3 years, and stayed with his sister in Sydney many times since the parties’ separation when he has helped with X. He is undertaking a work placement with (employer omitted) as an (occupation omitted) and then hopes to find full time employment. Prior to the parties’ separation and leaving Sydney, Mr S was helpful to the Mother, babysitting, preparing dinners, school lunches, and occasionally walking X to or from school.

6. Mr P, aged 65 years, was the partner of the Mother’s mother, who died in 1985 when the Mother was 9 years of age. Mr P was appointed guardian of the Mother, and her two brothers. Mr P is known to X as ‘Poppy Mr P’. He has been in the habit of having dinner with X and the Mother every Sunday and together they have participated in the (hobby omitted) each year. He attends X’s concerts, (hobby omitted) performances, parties and significant events and plays chess and draughts with her. In 2010 he was diagnosed with Parkinson’s Disease which has resulted in many health challenges. He describes a mutually supportive relationship with the Mother. He supports her emotionally, and the Mother has helped him manage his health, accompanying him to medical appointments and to hospital. Mr P is an (occupation omitted) at the (employer omitted) on the (omitted), but as a result of his illness presently works reduced hours. He anticipates his position will be reviewed in (omitted) 2016 when he will consider retirement. He proposes to return to live in Melbourne after his retirement to be closer to his sisters and mother and strongly supports the Mother’s application to relocate.  

7. In cross examination, the Mother acknowledged that she does not know when she will find employment, and that she cannot be certain that her aunts will be available to help when needed. However, she says her brother may be able to look after X at her Aunt Ms J’s home when not in employment, she knows her aunts will help when they can, and she would have “more help than I have at the moment”.  

8. The Mother says she is financially insecure. If required to stay in Sydney, the Mother says she will have to share a rental property to remain in the inner (omitted) or move to a less expensive area where she knows no-one. She says her flatmate has said he may not be able to continue to rent in (omitted). She would not have the emotional support of friends if she has to move from the area, and X would have to change schools. The Father does not help with the cost of X’s school fees or school uniforms. He refused her request to help with the cost of tutoring because he had a “big expense in October” (the month this hearing was listed). She would need more financial support to meet X’s care needs if she were working. The Mother believes Melbourne is more affordable than Sydney. She believes she has prospects of owning a home in Melbourne, as opposed to Sydney.

9. X would probably attend (omitted) Primary School, less than a 10 minute walk from her Aunt Ms J’s home. If in (omitted), she would attend (omitted) Primary School. The Mother anticipates using before and after school care if she is working.

10. As already outlined, the Mother proposes that X spend time with the Father on 4 weekends each term, two in Sydney and two in Melbourne, as well as additional time if the Father is in Melbourne at other times. She proposes regular skype/telephone time. She has agreed to final orders for X to spend 5 weeks with the Father in school holidays each year.  

THE PRIMARY CONSIDERATIONS   

The benefit to the child of having a meaningful relationship with both of the Child’s parents

1. The Mother cared for X full time during the parties’ relationship, and the Father says X and her Mother are very close. X will continue to enjoy the benefit of a meaningful relationship with the Mother because she will remain living with her.

2. The Mother describes a close and loving relationship between X and her Father and says X loves spending time with him. X has said to her “I miss my Daddy.” X described her Father to Ms R as a “cool dude”.[11] At interview in December 2014, X said she would like extra time with the Father, but misses her mother when she is with the Father for longer periods. She is able to confide in her Father and talk about anything worrying her.

   [11] At paragraph 42 of Exhibit 1

3. Ms R says that X loves both her Mother and her Father and each of them provide her with many positives. She reports[12]:

   Observations of X with each parent indicated very warm and comfortable relationships with both her mother and her father. Both her parents were responsive to X and she appeared to enjoy being with them.

   [12] At paragraph 49 of Exhibit 1

4. The Father fears that his and X’s “warm and comfortable relationship” would change if X were living in Melbourne, because she would not have weekly time with him, nor the opportunity to have him participate in her school life. The Mother says she is aware of the critical importance to X of her strong relationship with her Father and she will always promote their time together.

5. In Ms R’s opinion, X learns different things from each parent and it would be harder for her to benefit from the two parenting styles if the parties lived in different cities. Ms R is concerned that X’s close relationship with her Father could be significantly compromised if she was not able to spend time with him each week in his home, as she does presently. She says the quality of their time together is likely to change with the reduction in frequency of the time they spend together.

6. If X is living with the Mother in Melbourne, on the Mother’s proposal, she will spend time with the Father every alternate weekend, alternating between Sydney and Melbourne, and additional time if the Father can travel to Melbourne more frequently. She will have block time with him in school holidays. On the Father’s proposal, X will see him as often in Sydney as permitted by the Court, and in Melbourne, while he was not specific as to time, as often as he can manage the travel. The Father expressed a strong commitment to the maintenance of his relationship with X which I found heartfelt and genuine.

7. I find that X would spend less time with her Father if she were living in Melbourne than if she were in Sydney and that the Father would not be as involved in her school life in Melbourne to the extent he is currently involved at (omitted) Public School. While I accept that this would have the potential to impact on the strength of X’s relationship with the Father, I am not persuaded that X will not continue to benefit from a meaningful relationship with him whether or not the Mother is permitted to relocate.

8. This is a factor to which I give substantial weight.

The need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. “Abuse” is defined in section 4 of the Family Law Act 1975 as:

   (a)     an assault, including a sexual assault, of the child; or

   (b)     a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)     serious neglect of the child.

2. I find no evidence of “abuse” in this case.

3. “Neglect” is not defined in the Family Law Act and therefore must be given its ordinary meaning. There is no evidence of X being neglected.

4. Section 4AB(3) provides that “For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”

5. Family violence is defined at section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family….or causes the family member to be fearful.”

6. The Father makes allegations about the Mother’s behaviour while the parties remained separated under the one roof:

   a)On 23 June 2012, the Mother screamed at him in front of X “get out, get out, just leave” and physically attempted to remove him from the bathroom and slammed the bathroom door while X was in the bath. He says X looked “very distressed”. The Mother denies trying to remove the Father from the bathroom, or slamming the door.

   b)On 26 June 2012 in the late evening when X was asleep, the Mother was upset when the light was not working in the bathroom and the Father went to get a desk lamp as a temporary measure. The Mother “struck me with her palms and extended arms in the chest” and as he stepped backwards “she struck me again”, then retracted and fell backwards onto the floor. He says, “She looked at me as if I had pushed her.” X was asleep. The Mother denies the Father’s version of what occurred.

   c)On 25 August 2012 at lunchtime, the Father decided to go out when the Mother had said she needed his help. The Mother says the Father had gone out the day before to help someone with a boat when the Mother had been unwell. He told her he would stay to help her the following day. So the Mother asked why he was leaving. The Father said he had to help his friend. The Mother said to him outside the house, “go then, go and be with her.” The Mother says she was frustrated, slammed the back door and locked him out. The Father then re-entered the house and the Mother said “get out get out”. She “charged me very aggressively knocking me off balance face first into the bed.” The Mother says he came in the front, laughing. She then said “get out get out”.  She denies hitting him. The Father says the Mother “blames this person [the friend he was helping] for my decision to separate, paranoia, delusion, someone to blame rather than take responsibility.” At about 9 pm when collecting a few essentials, the Father says the Mother “barged past me” knocking him off balance, an allegation denied by the Mother. She said “get some clothes and go.”  

1. I find these incidents highlight the tension between the parties before the Father vacated the home. I am satisfied both parties behaved badly, but uncharacteristically so. I am not persuaded that X is at risk of exposure to family violence.

2. Ms R notes in her report that there is no Apprehended Violence Order between the parties and no “concerns about risk of family violence.”[13] In her opinion, X is safe with both parents.[14] I agree with her.

   [13] At paragraph 6 of Exhibit 1

   [14] At paragraph 53 of Exhibit 1

RELEVANT ADDITIONAL CONSIDERATIONS

Any views expressed by the Child and any factors (such as the Child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the Child’s views

1. X told Ms R she would miss her Father if she lived somewhere else, and that she sometimes misses him during the week. She said she would like an extra night with her Father during the week, but that she misses her Mother when she goes for longer periods with her Father but speaks to her Mother on the phone during those times. Ms R reports “X said that she likes the way things are now with her family but would like some extra time with her father.”[15]

   [15] Paragraph 43 of Exhibit 1

2. X told the Father last year that she would like to spend time with the Mother on a weekend saying, “Daddy I never get to spend time with mummy on the weekend, I only see her before and after school.”[16]

   [16] At paragraph 57 of Father’s affidavit sworn on 28 September 2015

3. I give minimal weight to X’s expressed views, given her young age and level of maturity.

The nature of the relationship of the Child with each of the Child’s parents and other persons (including any grandparent or other relative of the Child)

1. The Father describes a close relationship between X and her paternal grandmother, her paternal grandmother’s partner Mr D, and his sister Ms K. The paternal grandmother presented to Ms R as “frail and unwell” on the day of interviews. She had been unwell for the previous 6 months. She sees X each fortnight. She says she and her daughter have offered support to the Mother and are always happy to help. She says she stopped drinking 3 to 4 years ago.

2. Ms K gave evidence at the hearing. X has enjoyed several sleepovers at her home in the last 3 years, including two months before the hearing, and they enjoy being together. She now sees her approximately twice a month when with the Father in group family activities.  

3. The Father says X also relates well to her paternal grandfather and his wife who live in (country omitted). She and the Father skype the paternal grandfather and his wife in (country omitted) every week or so, X referring to her step-grandmother as “Nanna (omitted)”. I accept his evidence.

4. As already noted, X has a close relationship with the Mother’s brother Mr S, and with the Mother’s father, Mr P. I am also satisfied she has warm relationships with Ms S, her daughter Ms B and with Ms J. The Mother also has a step-brother and other relatives X refers to as “aunty” in Melbourne. She has a step-mother (who was married to the Mother’s father now deceased), step-brother Mr I (who has two children X’s age), and a step-sister Ms A who live in Perth and whom X and the Mother have visited.

5. I am satisfied X is well loved by members of her paternal and maternal extended families. I take these findings into account.

The extent to which each of the Child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the Child; and to spend time with the Child; and to communicate with the Child

1. As already noted, the parties have shared X’s care since separation, with the Mother playing a greater role as her primary carer and X spending time with her Father on most weekends and for block period of nights from time to time. She has spent an overnight with the Father each week since July 2015.

2. The Father attended X’s orientation day and first day of school at (omitted) Public School, and has engaged in parent/teacher meetings. He has attended events at the school to which parents are invited and assisted with excursions. His mother and her partner attended a morning tea at the school and a grandparents’ day in 2014 and 2015. I am satisfied both parties have participated in X’s school life.

3. The Mother has asked the Father for help at short notice which the Father has often refused or ignored. At the time of separation, the Father chose to help his friend Ms T, rather than respond to the Mother’s request for help. In July 2015, there was an emergency involving the Mother’s father’s hospitalisation. The Mother sent a text and rang, but the Father could not help her with X. When on 20 July 2015 the Mother sent the Father a text message advising she might need help with X over the next few days as a result of her father’s condition, the Father did not respond. On occasions, when the school has rung to say X is unwell and needs to be collected, the Father has not been available. While the Father accepts the Mother’s father’s illness created a pressing situation for the Mother, he says it is not possible for him to respond at short notice. He says in his affidavit, “I am not usually available to assist with the care of X on short notice.”[17] I find the Father is an unreliable source of support to the Mother in relation to X’s care in an emergency or at short notice.

   [17] At paragraph 131 of Father’s affidavit sworn on 28 September 2013

4. Although he recognises and acknowledges the importance of X’s relationship with the Mother, the Father has not always supported the Mother in her parenting role. The Father knows that the Mother needs the support of AA or NA meetings on a regular basis. Nevertheless, he chose to stop looking after X at the Mother’s home on Tuesday and Thursday nights so she could attend AA meetings, because he says the Mother was micromanaging his time and taking advantage of him. The Father himself was free to attend (hobby omitted) on a Monday night for himself and AA meetings regularly to provide for his own support.

5. The Father agrees that the Mother has reached out for practical assistance with X during the week, but he did not offer days he could help. While he says he offered to have X overnight at his home on Tuesday and Thursday nights, and the Mother refused, I am not satisfied it was a child focussed offer. While I accept his evidence that on occasions his work commitments have prevented him from helping the Mother and at times from spending time with X, I am not persuaded the Father has otherwise prioritised caring for X when the Mother has needed help. In cross examination, the Father acknowledged that on 5 May 2014 the Mother asked him to care for X as she was unwell. He had not told the Mother when he had the chance to do so on 4 May that he would be out of Sydney. He acknowledged that on 16 May 2014 he did not help when the school rang to say X was ill, and that on 19 May 2014, when X was not well enough for school, he did not help because he was not in Sydney. On only one day, 10 June 2014, has the Father cared for X when she has been ill. In cross examination, the Father agreed that he was due to have time with X in August 2014, but could not have her. He agreed that he did not attend the Father’s Day breakfast at the school, but sent an email stating “I run a diary.. people rely on me.”

6. The Father attempts to excuse his refusal to care for X when she is not well enough to go to school by admonishing the Mother for allowing X to stay home unnecessarily. While, as later addressed, I accept that X may have missed a school day when it has not been absolutely necessary, I find that the Father has not been prepared to cooperate with the Mother on addressing these issues. I find that the Father has largely disregarded the impact on the Mother and therefore on X, both emotionally and practically, when he has either ignored or refused the Mother’s requests for help with X.  

7. I give substantial weight to these findings. 

The extent to which each of the Child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the Child

1. Since the parties finalised their property settlement in late 2012, the Mother has relied on a modest capital sum, child support from the Father, and Centrelink benefits. She has been studying and is not in the paid workforce, and says she needs more financial support from the Father. The Father disagrees that that the Mother is finding it hard to provide for herself and X.

2. The Mother says that after separation she applied to Centrelink for support. She needed the Father to sign verification that she had at least 50% care of X. The Father refused to sign until lawyers were involved, resulting in the Mother incurring unnecessary legal fees.

3. The Father’s liability for child support is assessed at $601.75 a month or $138.39 a week from 1 December 2015.[18] The Mother says the Father has not been prepared to enter into a Child Support Agreement to cover the costs of extracurricular activities for X or the cost of their two pet cats. The Father does not help the Mother with costs of tutoring, uniforms, school fees, (hobby omitted) lessons, (hobby omitted) (since term 3) or X’s (hobby omitted), all of which the Mother believes help X’s self-esteem. On 9 September 2015, the Mother emailed the Father to ask whether he would meet half the school activity statement and he refused. He has been saying that he has a “big expense in October” (presumably referring to the costs of this hearing). The Mother says that she provides all clothing for X for her time with the Father. If there is a costume party during the Father’s time, the Mother has to provide the costume. The Father acknowledges refusing to help the Mother with X’s expenses because he was saving for a “big expense” in October, and says that the Mother should pay for X’s extracurricular activities from her capital.  He says “I was sick of hearing about money issues.”

   [18] Exhibit 8            

4. The Mother applied for a Change of Assessment at the Child Support Agency seeking an increase in the Father’s liability. Exhibit 6 is the Father’s Response dated 30 September 2015 to this Application. The Father states on the form that he receives $300 monthly in “interest and dividends.” In cross examination he conceded that he had received $100,000 on 2 July 2015 (not disclosed in his Response to the Agency) which he used to purchase property, but claimed he was “not sure how it will be attributed”. The Father acknowledges that his child support liability for X is based on his weekly salary and does not include the dividends he receives through his business. Further, the Father does not disclose the value of the shares in his private company in the Response form, which in cross examination, he concedes have value. The company generated dividends of $1.3m on 30 June 2014[19], to be distributed equally between the Father and his business partner. The Father states on the Response form that he has liabilities of $965,000, including a mortgage over his (omitted) home, when the loan had been paid in full. He does not disclose the funds he held in offset accounts at the relevant time. In cross examination, the Father conceded that he could afford to assist with (hobby omitted) costs for X as requested by the Mother. He admits he lent money to his former fiancé, Ms T, when the Mother had been asking for financial help which he was refusing. While he says that he wants input into X’s extracurricular activities, I am not satisfied this excuses his conduct. I find that the Father has been deliberately dishonest and has seriously misled the Child Support Agency to reduce his child support liability, which has a direct impact on X. 

   [19] Exhibit 7

5. I find that the Father’s liability for child support is based on inaccurate financial information provided by the Father to the Agency and that the Father has not met his obligation to maintain X to the extent of his capacity to do so. I find that the Father has the means to provide greater financial support to the Mother for X’s care, but has chosen not to provide that assistance without adequate explanation. I find that the Mother has carried the majority responsibility for X’s expenses since separation, despite the Father being in full time employment and the Mother being unemployed.

6. I give substantial weight to these findings.   

The likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from either of his parents, or any other Child, or other person (including any grandparent or other relative of the Child), with whom he has been living

1. If X is living in Melbourne with the Mother, it will not be practicable for her to spend every Wednesday and Saturday night with the Father during school terms, the pattern she has become used to. Nor will she have the option of spending time with the Father at short notice if he were available. X would not have the benefit of her Father or Father’s extended family attending school events as they now do from time to time. I agree with the Mother and Ms R that a move may cause X anxiety, and that she is likely to miss her Father.

2. Ms R highlights the difficulties X would face having to travel to see her Father, not having the benefit of seeing her Father as often in his own home, spending time with her Father in an unfamiliar ‘non-home’ environment in Melbourne and not having her Father involved at her school. I have regard to her opinion that such changes would be likely to cause a reduction in the strength of X’s relationship with her Father, a relationship critical to her welfare.

3. X has moved once since separation, which she found difficult for a number of months. The Mother says she may have to move again if her flatmate decides to vacate their (omitted) property as she cannot afford to meet double the rent. X’s circumstances are not presently secure in the longer term. If in Sydney, the Mother will continue to rely on a modest capital sum, child support payments and Centrelink benefits until she obtains employment. Once she is working, her costs of caring for X will increase. If in Sydney, the Father seeks orders providing for X to spend one weeknight a fortnight in his care, and if the Court were to adopt Ms R’s recommendation, X would also spend only one weeknight a fortnight in her Father’s care. This means that if the Mother were working full time, she would have to arrange X’s care on all weeknights and weekday mornings, bar one night and one morning. Given she has no family she can rely on in Sydney to care for X, either maternal or paternal, so it is likely she will have to pay for X’s care from her income and child support payments, as well as the costs of X’s education, tutoring and extracurricular activities.

4. If X relocates, the Mother will have some support from her extended family, although there is no certainty as to the extent of that support week to week, given the work and other commitments of her aunts and her brother. She will not have X cared for by the Father on any weeknight, but I find, on the evidence of the Mother’s aunt Ms J and her brother Mr S, that one of them would care for X in the evenings when required. The Mother would pay less rent for independent accommodation, and I find it likely her overall costs would be less in Melbourne than in Sydney, even with limited family availability to care for X, as she would not have to use before and after school care to the same extent as in Sydney. I am unable to speculate as to whether, as the Mother hopes, she would have prospects of ever buying her own home.

5. The Mother says she will facilitate X spending time with the Father whenever he comes to Melbourne, will facilitate time on alternate weekends, and facilitate skype and telephone communication. X would maintain her relationships with the Father’s extended family, although she would see them monthly rather than fortnightly as she does now.  

6. The Mother’s proposal involves considerable travel for X, an hour to the airport and over an hour’s flight each way. While X has travelled to Perth and Melbourne a number of times, and has travelled with her Father to (country omitted), the (omitted) and (omitted) on weekends, her ability to manage monthly travel to Sydney is untested. I agree with Ms R that the travel is likely to be tiring for X.

7. As will be addressed later in these Reasons, the Mother suffers from anxiety. She is a recovering alcoholic. She wants and needs emotional support. Though her father lives close by and she and X see him regularly, he is unwell with many health challenges, and cannot help with X’s care. He anticipates moving to Melbourne on retirement. The Mother speaks to her aunts in Melbourne regularly on the telephone, but her Aunt Ms S cannot afford to come to Sydney, and her Aunt Ms J can only manage a trip occasionally. The two aunts also have responsibility for their elderly mother in Melbourne. The Mother has relied on her brother to travel to Sydney from time to time and has a number of friends in the (omitted) area, but is otherwise reliant on the Father for assistance with X. The Father has proven to be rarely available as an emergency or short notice carer.

8. I agree with Ms R that the Mother has shown considerable resilience since separation, and a capacity to meet X’s needs despite her difficult circumstances. While I accept Ms R’s opinion that the Mother will do her best to manage if required to remain in Sydney, I find it is likely she will be put under considerable strain if she is denied the chance to move to a strong family support base. X’s best interests are inextricably linked with the emotional, psychological and practical wellbeing of each parent.  I have regard to the authorities which confirm the relevance of the welfare of a resident parent because of its importance to the welfare of the child.

9. The Father emphasises the critical importance of X in his life. He says he will spend as much time with her as possible, including travelling to Melbourne as often as he can. The Mother says she would endeavour to ensure that X’s relationship with the Father is not diminished by the move, having thought long and hard about the emotional consequences of X missing her Father. The time proposed by the Mother would mean time with the Father every second weekend if the Father is able to travel to Melbourne for two weekends a term and more often if the Father can travel more frequently. While less time than presently, weekday time being excluded, the arrangement would give X enough time to ensure her relationship with the Father is not diminished by the move.

10. I give my findings under this factor significant weight.

The practical difficulty and expense of a Child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the Child's right to maintain personal relations and direct contact with both parents on a regular basis

1. As already noted, the parties are currently living approximately 10 minutes apart and close to X’s school. If X relocates with the Mother to Melbourne, each party will be approximately an hour from the airport and an hour’s flight apart. X will spend less time with the Father, but as already noted, not significantly less time if the Father is able and willing to travel to Melbourne. There will be no impediment to X having regular contact with the Father by skype and telephone.

2. The Father has reasons to travel to Melbourne from time to time. His business owns a car which is left in (omitted) for company use and he has travelled to Melbourne for business in the last 3 years. The Father’s son, Y aged 12 years, lives in Melbourne, and he has recently re-established contact with him.  Ms R says that X should know that Y is her half -brother and in a properly planned process, she should have the opportunity to meet and spend time with her brother.[20]

   [20] At page 30 of transcript of proceedings on 26 October 2015

1. There would be considerable expense for both parties if X relocated. The Mother proposes meeting the costs of flights to and from Sydney twice a term and twice during school holidays. The Father would be required to meet the costs of travel to and from Melbourne on other occasions and for the two other holiday periods each year, as well as the cost of overnight accommodation in Melbourne when X was spending weekends with him.  

2. If X remains living in Sydney, there are no practical difficulties or expenses involved in her spending time with the Father, as long as she remains living close by as she does presently. As already noted, the Mother foreshadows a possible move away from the inner (omitted) of Sydney to a more affordable area if her flatmate moves out, which may have practical implications for X’s time with the Father.

3. I have regard to my findings about the practical difficulties created by X relocating.

The capacity of each of the Child’s parents and any other person (including any grandparent or other relative of the Child) to provide for the needs of the Child, including emotional and intellectual needs

1. As already noted, both parties are recovering alcoholics, the Father having been abstinent for 28 years, and the Mother for 14 years. Both attend Alcoholic Anonymous meetings each week and both have community support via the AA meetings they attend.[21]

   [21] At paragraph 7 of Exhibit 1

2. The Father deposes to being a hands-on parent from the time of X’s birth, holding and comforting, feeding and bathing the baby and putting X to sleep “whenever Ms Chambers would allow this.”[22] When the Mother started (omitted) classes one day a week when X was 10 months of age, the Father deposes to leaving work early to care for X. He says he cared for her when the Mother attended her NA/AA meetings twice a week. On weekends the Father says he encouraged the Mother to go out for a while and leave X in his care. He took her to (hobby omitted) classes, socialised with friends and engaged in a diverse range of age appropriate activities.

   [22] At paragraph 11 of Father’s affidavit sworn on 28 September 2015

3. Since separation, the Father describes the many activities he and X share together including trips to the beach, bushwalking in the (omitted), often with his mother and Mr D. They have been (hobby omitted), (omitted) and enjoyed watching AFL games. The Father has taken X on excursions to (omitted), (omitted), (omitted) and (omitted). X loves to sail on the Father’s boat, and to take the tiller. Since interim orders were made in July 2015, the Father has enjoyed meeting other parents at the school and being involved in X’s homework. The Father describes his routine at home on Wednesday and Saturdays overnight. They spend time with X’s “grandma” and “Mr D” and his sister Ms K, and share sailing and outdoor activities which X loves. He told Ms R that he and X are “social” but they spend about 60% of their time together alone.[23] The Father told Ms R he attends functions at X’s school, such as parent/teacher interviews, assisting with excursions and class events. When addressing her anxieties, the Father encourages X to try new things and gets positive results.

   [23] At paragraph 20 of Exhibit 1

4. The Mother believes the Father often has X in bed late and is troubled by a history of X being returned to her on Sundays exhausted.[24] At times she has not been showered, she is starving hungry and her hair is matted.[25] The Mother therefore sought to change drop off time to 4.30p.m. instead of 6.00p.m. The Mother has been distressed by the Father unilaterally extending the time for drop off and then ignoring her text messages to bring X home on time. The Mother has asked the Father to have X in bed at a reasonable time on Saturday night and to have “downtime” from activities. The Mother believes the Father sees no need to change his routine to accommodate X, including enrolling her in after school care on a Wednesday rather than collecting her from school. It frustrates the Mother that the Father cannot organise his holidays around X’s time with him during holidays and has booked X into vacation care before the Mother has agreed. The Mother says she would like the Father to collect X from school during the week, rather than sending her to (omitted) particularly because X has a fear of going there since she experienced being stuck in the toilet on two occasions in 2014.

   [24] At paragraph 193 of Mother’s affidavit sworn on 24 September 2015

   [25] Exhibit 11

5. The Mother suffers from anxiety and is protective and anxious about X. Ms R says that while practical day to day support and emotional support from family might alleviate the Mother’s anxieties, it is difficult to predict whether long term anxiety would still be present whether the Mother was in Melbourne or in Sydney, as it may be part of the Mother’s personality and upbringing.[26] The Mother told Ms R[27] that she had experienced depression 7 to 8 years ago and used anti-depressant medication at the time. She now manages stress by meeting with friends, (hobbies omitted), (omitted) and (omitted). She likes to go to AA meetings but cannot go to as many as she might like, as X becomes distressed if she goes too often.

   [26] At page 26 of transcript of proceedings – 26 October 2015

   [27] At paragraph 35 of Exhibit 1

6. The Father describes the Mother to Ms R as “a good mother” but who gives X too much attention if X “is fearful about something or is tired or a little unwell.”[28] He believes she is over-protective. She lacks trust in the Father’s and others’ ability to look after X, giving very specific instructions if leaving her with anyone and micromanaging. The Father complains that the Mother provides him with an extensive list of tasks he must accomplish with X including extra homework, treating her hair for lice and making her available to talk her. He says the Mother calls or texts his phone every day when X is with him, asking to speak to X, sometimes twice a day.[29] The Father reports X telling him that she is often late to school “with mummy”,[30] and that the Mother sometimes completes X’s homework for her. Ms K takes a long time to make a decision. She believes the Mother reinforces X’s anxieties rather than encouraging X to try something new. The Father believes the Mother has been discussing the move to Melbourne with X. X said to him recently “it’s much cheaper to live in Melbourne Daddy and I have heaps of family in Melbourne. I should be there with my family.”[31]

   [28] At paragraph 19 of Exhibit 1 

   [29] At paragraph 177 of Father’s affidavit sworn on 28 September 2015

   [30] At paragraph 92 of Father’s affidavit sworn on 28 September 2015

   [31] At paragraph 162 of Father’s affidavit sworn on 28 September 2015

7. Ms R found both parties had a degree of resilience, but raised the possible negative impact on the Mother’s parenting capacity if X is not permitted to relocate. However, she says both parents are recovering alcoholics and have a remarkable history of abstinence. Ms R says their strength in this regard is commendable “and indicates a great deal of inner strength.”

8. Ms R agreed with the Mother’s counsel that the Mother was good at seeking out what she needs to maintain her stability, and that her application to move to Melbourne might be exactly that. Ms R agreed that the Mother does not have practical day to day support of family members in Sydney, and while she grew up in Sydney, it is very different being a single parent.

9. I agree with Ms R that each party has a different parenting style, and both have many positives to offer her. On the negative side, I find the Father’s manner of communication with the Mother unhelpful, and a source of considerable frustration to her. While it is clear the Mother’s highly protective style of parenting annoys him, ignoring her texts or emails will not help X.  He does not seem interested in improving his co-parenting skills, nor does he appear to consider improvement necessary. He concedes sending an email to the Mother “there’s no co-parenting going on here. That’s why we’re off to court.” I find that the Father would benefit from undertaking a parenting after separation course. On the positive side, I find that the Father is a capable and loving parent to X and they enjoy a rich and stimulating relationship.  

10. In relation to the Mother, I accept Ms R’s opinion that she suffers from anxiety. She presented in the Courtroom as nervous/anxious. I found her concerns about the Father using the after school facility an overreaction given the ‘toilet’ incidents which frightened X occurred in 2014, and the Mother herself needs to use the (omitted) facility from time to time. However, I also agree with Ms R that the Mother impresses as a capable and caring parent, strongly committed to X’s welfare. She has completed a number of parenting courses at CatholicCare including “Keeping Kids in Mind” “Circle of Security” and “emotional coaching” which would have been helpful. I do, however, accept that the Father finds the Mother’s tendency to micromanage irritating and it might help their co-parenting relationship if she was able to step back, communicate less often, and trust him to do the right thing by X.

11. I take these findings into account.   

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the Child and of either of the Child parents, and any other characteristics of the Child that the court thinks are relevant

1. X presented to Ms R as articulate and “chatty”. “She appeared to enjoy being somewhat dramatic and showed a warm sense of humour.” She described maths as “a bit tricky.”[32]

   [32] At paragraph 40 of Exhibit 1

2. X suffers from anxiety and has learning difficulties, although the Father seems less concerned about X’s progress than the Mother. It is a source of concern and frustration to the Mother that the Father does not support X receiving academic tutoring, does not give her adequate assistance with homework, does not support her receiving counselling for her anxiety and undermines the Mother’s efforts to help her.

3. Ms R says that X’s anxiety appears to be increasingly impacting on her daily life.[33] In her report of January 2015, she recommends X attend an anxiety clinic. (omitted) Public School reports concerns about X’s anxiety. She was “irritable and anxious” “worrying about many things” “trouble controlling her worries” “appears on edge, nervous and jumpy” “presenting as depressed”. Ms R believes that X may be more anxious when required to focus and concentrate at school, and it is quite possible that she is a different child in her Mother’s home than in her Father’s home. Ms R agreed with the Mother’s counsel that each party has a different approach to managing X’s anxiety. The Mother cuddles her and “perhaps over identifies with X’s emotions and fears, becoming anxious about them. This may inadvertently feed into X’s fears rather than helping her to reduce her anxieties and build her resilience.”[34] The Father encourages her to face her fears rather than be overwhelmed by them. He talks about making her worries smaller, which Ms R says “may provide a needed balance for X and assist her to cognitively take some control over her anxieties and occasional negativity.”[35] She says X needs both approaches which is why it is so important for the parties to attend assessments together and adopt a common approach. Ms R says X should be assessed by a paediatrician.

   [33] At paragraph 55 of Exhibit 1 and page 26 of transcript of proceedings – 26 October 2015

   [34] At paragraph 55 of Exhibit 1

   [35] At paragraph 55 of Exhibit 1

4. Ms R reported her conversation with X's Year 1 teacher. X was the youngest in her Year 1 class, at times lacking concentration and focus and at times displaying a lack of resilience, but she had improved academically over the year. The Mother had expressed her concern to Ms E that X was socially isolated at school, spending lunchtimes and recess alone in the “quiet spot” in the playground.[36] The teacher did not share the Mother’s concerns. Ms E reported to Ms R that X was “overall”[37] socialising with the other children and was “mostly fine” but “did have some anxiety issues” and she raised concerns about X’s “resiliency” when challenged emotionally. Ms E was satisfied with her academic progress at school. Ms E observed that the Mother was “somewhat anxious and protective of X.”[38]

   [36] At paragraphs 50 to 52 of Exhibit 1

   [37] At page 9 of transcript of proceedings – 26 October 2015

   [38] At paragraph 52 of Exhibit 1

5. The Mother reported to Ms R that X “was extremely upset when she and X had to move house in March 2014”,[39] referring to the move from (omitted) to (omitted). Ms R says it was hard for both the Mother and for X to leave the house they had lived in for quite some time.

   [39] At paragraph 34 of Exhibit 1

6. Ms R reported X’s anxiety about enclosed spaces, and her concern about going in the lift during lunchtime on the day of the report interviews. She described having, “a scary feeling in my chest and my heart beats very fast and I feel like I might cry”[40] when faced with things that worry her, including being in a room with the door shut and no open windows. She reported being stuck in the toilet a few months earlier and to liking someone standing at the door when she goes to the toilet. She recognises that sometimes she does not want to go somewhere but then afterwards realising it is fun.  

   [40] At paragraph 41 of Exhibit 1

7. Ms R recommended that X attend therapy for her anxiety. She is critical of the Father if he has failed to respond to the Mother’s requests that he participate. Ms R says that where a child is assessed by a paediatrician to have anxiety or possible ADHD, it is important for both parents to be involved in the assessment process, in the meetings and treatments and in the actual recommendations made.[41] That would be critical to ensure X was able to make progress. Ms R says this does not mean there should be no intervention if one parent declines to participate, but the Court should ensure both parties are involved.[42]

   [41] At page 29 of transcript of proceedings – 26 October 2015

   [42] At page 30 of transcript of proceedings – 26 October 2015

8. On the recommendation of the school counsellor, the Mother arranged for X to be tested at the Literacy and Learning Centre, (omitted) to see whether she had specific learning difficulties. The clinical psychologist’s report dated 28 May 2015 discloses that while above average in some areas, “[X’s] phonological awareness skills and spelling skills were both significantly delayed for her age…significant impact on her ability to express herself in writing.”.. “X meets criteria for a Specific Learning Disorder in Writing, with particular difficulties in spelling. Her weaknesses… are consistent with those seen in dyslexia.” The assessment recommended intensive support for literacy at school for her learning difficulties in spelling and writing and extra remedial support outside of school. Involvement in the Cool Kids programme was strongly encouraged.[43] She then attended tutoring at the centre one morning a week which the Mother said was helpful.

   [43] Exhibit 3

9. In June 2015, X was assessed by Mr K, the school counsellor at (omitted) Public School. The Mother had referred her because of concerns about X’s academic progress and perceived lack of confidence with academic work. Mr K referred to[44] the initiatives taken by the Mother to help X, which he supported: she had engaged a clinical psychologist, (omitted), to address X’s anxiety, had had her academically tested by the Literacy and Learning Centre at (omitted), had made an appointment for X to be seen by a consultant paediatrician, and had attended a parent education programme at (omitted) on emotional coaching for children. Mr K formally tested X’s intellectual abilities and assessed her functioning using observations and a formalised rating scale to be completed by her teacher. He assessed her to be of average intelligence “trending lower with her processing speed” (but also in the average range).[45] Her teacher reported significant levels of inattention, hyperactivity and impulsivity, problems of executive functioning, learning problems, peer relation problems, conduct problems/oppositionality. Some of the screening question results “endorsed some symptoms that can be associated with anxiety and depression.”[46] When Mr K saw X in class, she appeared unhappy[47].

   She fidgeted a lot: moving her hands around, playing with objects and sometimes rocking about. She seemed very distractible, sometimes appearing to not be listening to the teacher.

   [44] Exhibit 4

   [45] At page 8 of report at Exhibit 4

   [46] At page 7 of report at Exhibit 4

   [47] At page 7 of report at Exhibit 4

10. In Mr K’s opinion, this may be reflective of Attention-Deficit/Hyperactivity Disorder (ADHD). However, other explanations include anxiety and/or depression, and parental separation may be a factor in this regard. However, he noted that X’s teacher had recently reported improvements in X’s symptoms, saying she appeared happier and calmer. 

11. I accept Ms R’s opinion that X would benefit from therapeutic assistance with her anxiety issues and that both parties need to engage in that therapy. I am also satisfied that X has learning problems and needs a comprehensive assessment from a paediatrician to identify the supports she needs. I find the Mother’s decision to have X assessed by the Learning Centre and by the school counsellor soundly based, and the Father’s failure to accept the need for these interventions or to engage constructively with the Mother on these issues, of concern.            

12. I take these findings into account.

The attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child’s parents

1. Ms R reports that the Mother presented as “warm and committed to X and her needs.”[48] The Mother told Ms R she is encouraging of X’s relationship with the Father, understanding its importance to X. She always speaks positively about the Father to her.[49] She gives the Father information about school events and activities, wanting her to have a close bond with him. The Mother told Ms R[50] that she believed it was important that X felt she could go to either parent if she needs emotional support. The Father also acknowledges the close bond between X and the Mother. He has a photo of the Mother on X’s dresser in her room at his home.

   [48] At paragraph 25 of Exhibit 1

   [49] At paragraph 26 of Exhibit 1

   [50] At paragraph 30 of Exhibit 1

2. Although the parties separated when X was under school age, X has developed a solid relationship with the Father. The Father acknowledges that the Mother has never denied X time with him and that the Mother ensures X talks to him when calls are missed. However, he contends that the Mother has limited the scope and time of X’s time with him and made unreasonable demands about what type of activity X can do with him. He says she shows little flexibility in changing arrangements when he makes an occasional request, while giving examples of his flexibility when asked by the Mother to change arrangements. The Mother on the other hand, says the Father spent very little holiday time with X until 2014, no time at all between 1 June and 27 June 2015 and rarely rang to speak to X before July 2015.

3. The Father deposes to his concerns about X’s absences from school when in the Mother’s care.[51] Annexure F to the Father’s affidavit discloses that between February 2014 and August 2015, X had 13 partial absences, 35 whole day absences. Annexure G discloses that on 4 days in 2015 her absences were marked “unjustified”. The Father believes X “tries it on” with the Mother who weakens too easily. In her partial defence, the Mother says that between February and June 2014, 11 absence days were on Mondays when X was too exhausted after a weekend with her Father to go to school. At times, the Mother acknowledges getting X to school late, but says she has only had help from the Father on weekdays since July 2015, despite her previous requests for help during the week.[52]

   [51] At paragraph 128 of Father’s affidavit sworn on 28 September 2015

   [52] Exhibit 11

1. The Mother feels the Father does not support X’s education as she does and he does not believe X needs support with homework or tutoring. The Father is critical of the Mother enrolling X in tutoring without consulting him, and which he considers unnecessary. On the other hand, the Mother says she helps X a lot with her school work because of lack of progress. She does reading group in her classroom each Tuesday. Earlier in the year, the Mother met Mr A, X’s teacher with X (because X was anxious around him) and while the Father was invited he did not attend. The Mother takes X to her extracurricular activities, the Father rarely involved.

2. Both parties acknowledge communication between them is difficult, particularly when one or the other does not respond to emails. The Mother deposes to email communications from the Father when she wanted to discuss how to talk to X about the Father’s new relationship with ‘Ms T’. The Father wrote: “there is nothing to talk about. You take all our assets, you take my rights, you ruin my business relationship, you use X as leverage to get what you want and as soon as I move out of my mum’s place you complain to CSA that I have a place to live. I really have nothing to say to you except arrange pickups and drop offs.”[53] He claims the Mother was deluded and paranoid about Ms T being his girlfriend. The Father concedes he has sent the Mother blunt emails. He admits that at times he lets her calls go to voicemail and resists telephone communication. He concedes that he has sent the Mother unhelpful sarcastic emails critical of her. He has spoken about her in negative terms to his friends and on 27 May 2015 sent an email to her which said “me and my friends find you peculiar”. He has undermined her to X saying “mummy is a control freak”. X has said to the Mother “Daddy hates you mummy. He says you’re mean. That’s why he had to go.” “Daddy thinks you are a control freak.”[54] He uses X as a conduit, for example having X call the Mother to say they are running late, and having X ask if a particular movie is suitable.  

   [53] At paragraph 57 of Mother’s affidavit sworn on 24 September 2015

   [54] At paragraphs 207 to 208 of Mother’s affidavit sworn on 24 September 2015

3. The Father chose not to see X’s teacher in the presence of the Mother, though acknowledged in cross examination that it is important to hear the same information together. He decided not to attend X’s birthday party in 2015 though invited to do so. The Father did not respond to the Mother’s attempts to consult him in relation to X attending the Cool Kids’ programme, nor did he make any inquiries of his own in light of Ms R’s recommendation about X’s participation in the programme in her report of early 2015. The Father did not respond to the Mother when she sent him information about the Anchor programme. I find the Father’s failure to respond to the Mother’s emails, inexplicable and unacceptable.[55]

   [55] See exhibit 5

4. I find the Father is resistant to constructive communication with the Mother, choosing to ignore her texts, emails and phone calls when it suits him. I find the Father does not consider the Mother’s views when unilaterally returning X at times to suit him. I find the Father has shown an irresponsible attitude to his parenting responsibilities in this regard.  On the other hand, I find the Mother’s communications to the Father generally child focussed and helpful. 

5. I give weight to these findings.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the Child

1. I am satisfied the parties will comply with Court orders once made, and neither party is likely to initiate further litigation. The parties have a history of compliance with Court orders.

Parental Responsibility

1. The Father seeks an order for equal shared parental responsibility. The Mother sought the same order until the commencement of the hearing. At hearing, she sought an order for sole parental responsibility in relation to a particular aspect of decision making for X. Order 3 of her Minute of Orders sought[56] provides that, provided the Mother gives the Father notice of any school counsellor, psychologist, counselling programme or group and/or academic tutoring at least 7 days prior to any appointment, then she be permitted to facilitate the child’s involvement/participation.

   [56] Exhibit 2A

2. As already noted, I find there have been difficulties in the parties’ communication, acknowledged by both parties.  Each complains that the other has made decisions concerning X without consultation.  For example, the Father says the Mother took X to a child psychologist without his knowledge, organised tutoring for her without his knowledge, enrolled her in (hobby omitted) classes without consultation and until interim orders were made in July 2015, the Mother unilaterally chose when and when not to allow X to spend time with him, and under what conditions.  The Mother, for her part, contends that the Father has made unilateral decisions to enrol X in after school care, in vacation care and as to what time he would return X home after her weekend time. The Father took X to Church in March 2015 in contravention of an agreement they had reached about Church. He did not tell the Mother about his new relationship with ‘Ms L’(who has daughters X talked about), which resulted in X travelling with him to (omitted) on weekends. The Mother says the parties cannot consult and resolve issues together. The Father has ignored emails about issues concerning X, including organising a tutor for her. In early 2015, after receiving Ms R’s report, the Mother raised with the Father the possibility of enrolling X in the ‘Cool Kids’ programme to help X with anxiety issues as recommended by Ms R. The Mother received no response. She again asked the Father about the programme in July[57] but received no response. Yet the Father was critical of the Mother for failing to give him enough information about the programme. 

   [57] Exhibit 9

3. Ms R strongly encourages the parents to learn to communicate in a healthy way for X.  She says that while there are communication difficulties, the parties both appear to care for X and to be able to prioritise her needs above their dispute. Ms R believes the parties have the potential to work together, with professional help, because there is some history of compromise between the parties and she predicts the parties’ cooperation might improve when final orders are made and the litigation finalised.  In her report Ms R noted that, “both parents appear to be able to communicate about X, positively, even to the extent of jointly organising a birthday party for her.”[58] She suggests, as a start, both parties attend the Anchor Programme. The Mother refers the Father to the website for the Anchor programme in her email to him of 17 September 2015.[59] Ms R said both parties need to be motivated to improve their co-parenting relationship and that respectful communication will lead to the best outcome for X.[60] She recommends the parties have equal shared parental responsibility for X.[61]

   [58] At paragraph 70 of Exhibit 1

   [59] Exhibit 5

   [60] At page 37 of transcript of proceedings – 26 October 2015

   [61] At paragraph 54 of Exhibit 1

4. Section 61DA of the Family Law Act 1975 requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility, and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the child.  

5. I agree with the Father’s counsel that while the parties may benefit from professional assistance in improving their ability to work together, the evidence supports the application of the presumption in favour of equal shared parental responsibility. I agree with the Father’s counsel that conflict or poor communication in itself should not prevent an order being made for equal shared parental responsibility. I find the parties have demonstrated a capacity, at times, to consult effectively about issues concerning X and that it is in her interests that they do so into the future. I agree with Ms R that it is imperative for the success of X’s health/educational interventions that both parties work together to support her, and I am satisfied they are capable of doing so. I am not persuaded it is in X’s best interests to have the Mother in sole control of certain aspects of her care. I have therefore made an order for equal shared parental responsibility.  To assist the parties, I have also made an order requiring each party to respond to the other’s text or email within a reasonable time.  

6. In these circumstances, s.65DAA(1) requires the Court to consider whether making orders that the child should spend equal time, or if not equal time, substantial and significant time with each party would be in the best interests of the child and whether such an arrangement is reasonably practicable,[62] having regard to the factors set out in section 65DAA(5). These factors include the distance between the parties’ homes, the parties’ capacity to implement such an arrangement, the parties’ capacity to communicate and resolve any differences between them, the impact such an arrangement would have on the child, and any other matter the Court considers relevant. The requirement of reasonable practicality “requires a practical assessment of whether equal time parenting [or substantial and significant time parenting] is feasible”.[63] 

   [62] Section 65DAA Family Law Act 1975; See also MRR v GR [2010] HCA 4

   [63] MRR v GR [2010] HCA 4

7. If X were living in Melbourne, neither equal time, nor substantial and significant time would be reasonably practicable, given the travel time between the parties’ homes would be several hours. If X were living in Sydney, neither party seeks an order for equal time. The Father seeks an order for significant and substantial time, being from Thursday after school on alternate weekends until Monday morning, while the Mother seeks a continuation of the present arrangements for the foreseeable future, of one night on the weekend and one night each week. Ms R recommends that X gradually increase her weekend with the Father ultimately to 3 nights, and spend one night in the off week with the Father. On both parties’ proposals, and on Ms R’s recommendations, if X is living in Sydney, X would have substantial and significant time with the Father. She would spend time with the Father on weekdays and weekend days, the time would allow the Father to be involved to some extent in her daily routine, and would also provide the opportunity for the Father to participate in occasions of significance to X, and occasions of significance to the Father in accordance with s.65DAA(3).

Discussion and Determination   

1. In Ms R’s opinion, the greatest risk to X of the proposed relocation is in leaving her community in Sydney, including her Father, her paternal grandmother, her school friends and her Mother’s friends.[64] X would have ‘her family’ (her Mother and her Father) if she lives in Sydney.  Ms R says that X learns from both her Mother and from her Father and if in Melbourne, she would miss the experience of the balance between what the Father offers and what the Mother offers.[65] In addition, time with the Father in Melbourne is likely to be spent in commercial accommodation which is “much more unsettling for a child.”[66] Given X suffers from anxiety, each new place she stays will be a challenge for her.  She would not have the benefit of regular time in her own room as she has with her Father in Sydney, decorated for her with her books, toys and things around her.  In Ms R’s view, this would affect the quality of the experience with her Father.[67]  She says it would be much harder to maintain the familiarity, the jokes, without the weekly contact. “The familiarity is probably a large part of a child’s comfort and security as well”.  She would not have the same predictable routine if living in Melbourne, and travel could be burdensome, depending on frequency[68]: 

   I think that X would benefit from the routine nature of knowing exactly when she sees each parent and how she spends time with them, which is part of the problem with Melbourne in that you may not be able to have as routine a time with travelling to and from Melbourne.

   [64] At page 14 of transcript of proceedings – 26 October 2015

   [65] At page 21 of transcript of proceedings – 26 October 2015

   [66] At page 15 of transcript of proceedings – 26 October 2015

   [67] At page 15 of transcript of proceedings – 26 October 2015

   [68] At page 21 of transcript of proceedings – 26 October 2015

2. Ms R says there are also positives in relocating to Melbourne. These are primarily to do with the Mother’s mental health, her wishing to have family around her, and believing that the family will provide that. Ms R did not meet the Mother’s family so could not comment on what they might provide.  She says that the Mother may feel depressed, angry or upset about not being allowed to move, which might impact on her parental capacity.  She agreed with the Mother’s counsel that the Court would need to find that the Father is a back up for X to keep her in Sydney.[69] The Mother’s counsel asked the Court to note that the Father’s proposal does not allow for the Mother to attend AA on two occasions each week, a routine critical to the Mother’s wellbeing. Ms R says[70]:

   The risks and impact on Ms Chambers if she is unable to relocate is also critical to consider in this matter.  Ms Chambers strongly believes that her life, and consequently therefore, X’s life, will improve if able to move to Melbourne.  She emphasised her financial struggle and that she would be unable to achieve financial stability in Sydney but believes it is possible in Melbourne.  [Ms R says she cannot comment on the financial implications of the relocation]. The focus of this report is on the child and the impact of such a move on X.

   [69] At page 28 of transcript of proceedings – 26 October 2015

   [70] At paragraph 64 of Exhibit 1

3. Ms R concludes[71]:

   On balance, the impact on X of the reduction of her time with her father if she were to be able to relocate to Melbourne with her mother, is considered to be potentially a greater risk of  X’s long term emotional and developmental outcomes than the impact on Ms Chambers, and hence X, of having to remain in Sydney. …

   However, the Court, with all the evidence before it, will need to weigh up whether the loss of X’s current relationship with her father and the paternal extended family is more or less critical than Ms Chambers’ potential struggle and economic realities by her continuing to live in Sydney and away from her family support.

   [71] At paragraph 71 of Exhibit 1

4. The impact of a move to Melbourne on X’s relationship with her Father was the core element of inquiry for Ms R, and remained her prime concern. She was concerned about X losing the balance of both parents with different parenting styles, the loss of X’s community, the effect of relocation on an anxious child, and the impact of travel. Ms R was not aware of the Father’s concession that X could not be left in the sole care of his mother or sister, nor did she have the opportunity to meet, or to hear the evidence of, the Mother’s family witnesses. Ms R was not asked to comment on the fact that the Father’s proposal does not support the Mother’s need for regular attendance each week at AA meetings. 

5. I have given careful consideration to Ms R’s opinions and recommendation, given that the maintenance and growth of X’s relationship with her Father is central to X’s well-being. I agree with Ms R that X would have a more intimate relationship with her Father if living close by in Sydney as she does currently and would have the benefit of significant and substantial time with him.  If the Court’s inquiry was confined to that factor alone, X’s interests would be best served by remaining in Sydney.

6. I have not concluded that X’s relocation would result in the loss of or a significant diminution in the strength of her relationship with the Father. I find the Father has a strong commitment to maintaining his relationship with X, and if X’s residence was relocated, he would spend regular time with her in Sydney and in Melbourne.  I accept the Father’s evidence that whatever the outcome of this case, he is determined not to be cut off from X as he was from his son Y. He says he has re-established contact with Y who lives in Melbourne, and travels to Melbourne on occasions for work, with a business vehicle available to him there. I find that the Mother has always nurtured and supported X’s relationship with her Father, and will continue to do so, understanding its importance to her welfare.  If in Melbourne, X could see her extended paternal family in school holidays and approximately monthly during school terms, rather than fortnightly as she does presently.  I accept Ms K’s evidence that she would maintain contact with X if X were living in Melbourne. I am also satisfied that X’s loss of community in Sydney could be compensated over time by the close involvement in her life with the Mother’s Melbourne family. 

7. I find the Mother’s statement that she feels isolated in Sydney with limited family support, and a small network of friends, is supported by the evidence.  She cannot rely on her own father to care for X given his health difficulties, nor the Father’s mother or sister or the Father’s mother’s partner.  Apart from calling on the good will of friends, the Mother is totally reliant on the Father to care for X when the Mother is unavailable, unless she pays for care, not easy to arrange at short notice, and costly. The Father has proved to be unavailable at short notice. The Mother is vulnerable.  She has suffered significant loss during her childhood and became addicted to alcohol.  She suffers from anxiety and needs the support of AA/NA meetings. The Father is not proposing to care for X each week to enable her to attend these meetings. The Mother is also managing X’s anxiety. She has engaged with professionals to have X assessed and to assist X with her behavioural and learning difficulties. She has enrolled X in extracurricular activities to boost X’s self-esteem. I find that the Father has not contributed adequately to the Mother’s efforts to assist X, nor engaged cooperatively with the Mother in relation to X’s needs, largely dismissing the Mother’s concerns which, by a reading of the professional assessments, are well justified.

8. I was impressed by all members of the Mother’s extended family who gave evidence.  Each outlined her/his day to day commitments, and did not attempt to embellish their availability to help the Mother with X. All of them demonstrated a strong loving commitment to the Mother’s and X’s welfare, and a genuine desire to support the Mother emotionally, as well as to help her with X in a practical sense, to the extent possible. I find that they all, with the Mother, have carefully thought through the Mother’s proposal in a realistic way.  I am satisfied the Mother will be much better supported in Melbourne than in Sydney. 

9. The Mother claims financial difficulty if she remains in Sydney. She says she may not be able to afford to remain in the (omitted)/(omitted) area. Her claims were contested in a non-specific way by the Father, who none the less resisted any suggestion that he might lighten the Mother’s perceived financial load.  I found the Father’s attitude troubling, given my adverse findings as to the Father’s credit in his dealings with the Child Support Agency.  I have found the Father has not met his financial obligation to support X to the extent of his capacity to do so.  He shows no willingness to change his position.  I find it likely that the Mother’s overall expenses will be less in Melbourne than in Sydney, even though she would be meeting the cost of return airfares to Sydney four times a year.  

1. There is no suggestion in this case that X is at risk in the care of her Mother, whether she lives in Sydney or in Melbourne.  I agree with Ms R that the Mother has shown considerable resilience since separation and a capacity to meet X’s needs in difficult circumstances.  While I accept Ms R’s opinion that the Mother would do her best to manage if required to remain in Sydney, I find she would be placed under considerable strain if denied the chance to move to a strong family support base. X’s best interests are inextricably linked to the emotional, psychological and practical wellbeing of each parent. I find it unrealistic to assume that nothing will change in the Mother if the Mother is restrained from relocating. The Mother wants to be with her family in Melbourne, she wants to obtain employment and continue to study to improve her financial position, she wants to give X a stable home base in a stable community. The Mother would be denied those opportunities if compelled to remain in Sydney.  Such an outcome would be a negative for X.  The Father, on the other hand, is well resourced emotionally, psychologically and financially. He has a successful business, and family support around him.   

2. I agree with Ms R that there are risks in each direction in most relocation cases, including this one, with some unpredictable outcomes in the event of relocation being permitted or denied.  I agree with her that the travel could be an issue, although find that 4 trips a year in holidays and 2 trips each school term not overly burdensome, given that for the foreseeable future, X would need to be accompanied.  

3. I have decided that the Court should not exercise its power to restrain the Mother from relocating X’s place of residence to Melbourne. The Father supports X living with the Mother. I find the Mother’s wellbeing will be enhanced by the move and X will maintain her relationship with her Father by a regular contact regime and spend regular, albeit less frequent time with her extended paternal family. The Mother will be permitted to relocate with X to Melbourne. 

4. The Father did not set out a specific proposal for his time with X if the Mother were permitted to move X to Melbourne.  However, he made it clear he would want as much time as possible and as practicable.  In addition to holiday time, the Mother proposes that X spend two weekends a term in Sydney, and two weekends a term in Melbourne with the Father, with additional time in Melbourne if the Father travels there.  At interview with Ms R, the Mother proposed that X spend from Friday to Monday with the Father when the Father travels to Melbourne during school terms.  However, at hearing, the Mother proposed that X’s weekend time be limited to 36 hour periods whenever the Father is in Melbourne. She proposed two weekends a term in Sydney from 10 a.m. Saturday until 3.00p.m. Sunday and two weekends per term in Melbourne from 10.00a.m. Saturday until 4.30 p.m. Sunday until X is 10 years of age. Thereafter, she proposes X spend from Friday evening until 3.00p.m. Sunday afternoon with the Father in Sydney or from after school Friday until 4.30p.m. Sunday when in Melbourne, as well as additional periods of up to 36 hours at any other time the Father is in Melbourne.  

5. I have decided that X’s time with her Father should be maximised as far as practicable, and should not be as restricted in time as proposed by the Mother. I am guided by Ms R’s recommendations as to time if X were living in Sydney. Ms R recommended one night during one week and a gradual increase to 3 consecutive nights in the other week.  She recommended that time gradually increase each 2 to 3 months to achieve that final arrangement.[72] In line with her recommendation for a graduated increase in time, I am satisfied that while she remains in Sydney, X will continue to spend time with the Father in accordance with the current interim orders.  For her first two terms in Melbourne, she will have one overnight each fortnight with the Father, alternating between Sydney and Melbourne. Time in Sydney will commence at midday on Saturday rather than 10.00a.m. given the time it is likely to take to reach Sydney airport from her home on a Saturday morning. The Father will also have the option of spending up to 36 hours with X in Melbourne on giving notice to the Mother.  After two school terms in Melbourne, I am satisfied that X will benefit from spending up to 48 hours with the Father whenever he is in Melbourne, upon him giving reasonable notice to the Mother, and from spending two consecutive nights with her Father on alternate weekends.  The Mother will be responsible for X’s travel to and from Sydney twice per school term and twice in school holidays as she proposes.  The Father will be required to give the Mother notice if he is unable to spend weekend time with X, and cover the Mother’s travel costs incurred, if any. Changeover will occur at the Mother’s residence or at school when in Melbourne, and at Sydney airport in Sydney.

   [72] At page 39 of transcript of proceedings – 26 October 2015

6. The parties have already agreed on arrangements for X to spend time with the Father during school holidays, on Father’s Day, Christmas Day and with the Mother on Mother’s Day. They have also agreed on arrangements for overseas travel, for exchange of information and for certain restraints. I made those orders by consent at the conclusion of the hearing.   

7. In relation to each party’s birthday, the Mother seeks an order for X to spend time with her on the Mother’s birthday and says she would agree to X spending time with the Father on his birthday, although did not refer to the Father’s birthday in her Minute of Order sought. The Father does not propose any orders in relation to birthdays. I find it unnecessary to make orders about time on birthday.  As long as the Father gives the required notice, he will be free to have X in his care on his birthday and/on X’s birthday if she is not otherwise in his care and he chooses to travel to Melbourne.  X will not spend time with the Mother on her own or the Mother’s birthday if she is in the Father’s care, unless otherwise agreed between the parties. In other words, unless otherwise agreed between the parties, birthdays will fall where they fall.

8. In relation to telephone/skype/face time, the Father seeks an order providing for the Mother to be restrained from contacting the Father or X when she is in the Father’s care, except in an emergency, but for him to facilitate X telephoning the Mother on Saturday evenings during weekend visits, and on each Wednesday and Saturday evening during school holidays. His counsel submits the restriction sought may not be necessary in the longer term, and said the Father did not have a fixed position on this issue. As earlier noted, the Father has been concerned about the frequency of the Mother’s calls to X when in his care and the disruption they can cause.  The Mother seeks an order that X have telephone or skype contact with the Father on Tuesday and Thursday evenings, on X’s birthday and Christmas Day, with which the Father agrees.  Her Minute of Order does not refer to X’s telephone contact with her when with the Father. 

9. I share Ms R’s view that each family should reach their own decision about the frequency of phone contact, but it is probably easier if a set time is arranged. If time with the parent is short and the calls are frequent, she says it can be harder to maintain the momentum of the time with the other parent.[73] Ms R did not support the Father’s proposal to reduce the Mother initiated calls to X to one call in 4 days.  X told Ms R that if she is away from her Mother for long periods, it helps her to speak to the Mother.  She could not comment on whether the calls raise X’s anxiety. Ms R suggested that one solution might be for the party with whom X is living to facilitate X calling the other parent at set times. She could not say whether X could manage a day without a phone call.[74]

   [73] At page 12 of transcript of proceedings – 26 October 2015

   [74] At page 13 of transcript of proceedings – 26 October 2015

10. I find no reason to restrict X’s telephone/face time with either parent, particularly X’s telephone time with the Father once she has relocated, but agree with Ms R that it is a likely to work better for X if the parent caring for her at the time facilitates the call.  Unless otherwise agreed between the parties, X will have telephone/facetime contact with the Father each evening between 6.00 and 7.00 p.m. (unless she has seen the Father that day), when the Mother will assist X to make the call.  X will have telephone/facetime contact with the Mother each Saturday evening between 6.00 and 7 p.m. when with the Father on a weekend, and each second evening during school holidays between 6.00 and 7.00p.m., when the Father will assist X to make the call.   

11. I find it unnecessary to make the orders sought by the Mother in relation to information sharing about X’s location when with the Father.  However, given I find the Father has not always kept the Mother informed when X has been out of Sydney, I have made an order that each party advise the other in writing of X’s holiday destinations. 

12. As already noted, the Mother has undertaken post separation parenting courses. I have made an order that the Father also undertake a post separation parenting course.  He might also consider participation in a Circle of Security programme.  

13. I support Ms R’s recommendation that the parties engage in therapy to improve their communication and co-parenting relationship. However, the geographical distance between the parties may pose practical difficulties. I have not therefore made an order in relation to the parties’ engaging in therapy. The parties are urged to make their own inquiries as to whether one of the agencies such as Unifam, Relationships Australia, CatholicCare or Interrelate would assist the parties, with one of them on the phone. 

14. I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of X.  

I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date:      8 January 2016