Flynn and Jasper - [2008] FMCAfam 106

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLYNN & JASPER

[2008] FMCAfam 106

FAMILY LAW – Parenting – applicant and biological mother engaged in same sex relationship at time of conception – applicant not a biological parent of the child – child conceived through assisted conception – unilateral relocation by biological mother – interim application to restrain biological mother from relocating.

Family Law Act 1975, ss.60B, 60CA, 60CC

Campbell and Spalding [1998] FamCA 66
Cowling [1998] FLC 92-801
Goode & Goode [2006] FLC 93-286
Hammond and Johnson [2006] FMCA fam 514
Masling and Milliken [2007] FLC 93-343

Applicant:

MS FLYNN

Respondent:

MS JASPER

File Number:

SYC 4538 of 2007

Judgment of:

Sexton FM

Hearing date:

4 February 2008

Date of Last Submission:

4 February 2008

Delivered at:

Sydney

Delivered on:

8 February 2008

REPRESENTATION

Solicitors for the Applicant:

Watts McCray

Counsel for the Respondent:

Mr G Forster

Solicitors for the Respondent:

Lewarne & Goldsmith

Solicitors for the Independent Children’s Lawyer

Legal Aid Commission of NSW

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Order 5(c) of orders made on 17 July 2003 in relation to G born in February 2002, be discharged.
From Tuesday 12 February 2008 the mother be restrained from moving G’s residence from outside the L area.
The parties re-enrol G in S School from no later than Tuesday 12 February 2008.
In the event the mother is unable to return to live in the L area by Tuesday 12 February 2008, the following shall occur pending the mother obtaining accommodation for herself and G in the L area:
(a)G shall live with the co-parent mother;
(b)If requested by the mother to assist with G’s transport from B to Sydney with her necessary possessions, the co-parent mother to provide assistance as requested; and
(c)The co-parent mother shall personally deliver G to school each day and collect G from school each day.
Subject to Order (4), G spend time with the co-parent mother as agreed between the co-parent mother and mother or in default of agreement as follows:
(a)During school terms each alternate weekend from after school Friday until 4.00p.m. Sunday or 4.00p.m. Monday if a long weekend or pupil free day with such weekends to commence on the first weekend after the resumption of the school term if the co-parent mother has G during the first half of the preceding school holiday period and on the second weekend after the resumption of the school term if the co-parent mother has G during the second half of the preceding school holiday period, and for the purposes of this order the co-parent mother shall collect G from school on Friday and the mother shall collect G from the co-parent mother’s residence on Sunday.
(b)For one half of the mid year term school holiday periods during 2008 being the second half, 9.00a.m. on the midpoint day of such period to 5.00p.m. on the day before the resumption of term, and for the purposes of this order the co-parent mother shall collect G from the mother’s residence at the commencement of such periods and the mother shall collect G from the co-parent mother’s residence at the conclusion of such periods.
(c)During the Easter break from after school Thursday to 5.00p.m. Saturday.
(d)Each Tuesday from after school to 7.00p.m.
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.
The co-parent mother’s costs be reserved to final hearing.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 4538 of 2007

MS FLYNN

Applicant

And

MS JASPER

Respondent

REASONS FOR JUDGMENT

Introduction

This case concerns interim parenting arrangements for G, who will be six later this month. G is in Year 1, her second year of schooling. She spent her first year of school at S School in L. G was born as a result of artificial insemination. Her biological mother is the respondent in these proceedings and the applicant is the mother’s former partner. The parties started living together in 1998, participated in a commitment ceremony in December 2001 and separated in early 2003. As a result of the parties’ joint commitment to start a family, G was born in February 2002. The identity of G’s biological father is not known. In these Reasons, I refer to the applicant as the co-parent mother, and the respondent as the mother.
In July 2003, orders were made by consent in relation to parenting arrangements for G. Those orders provided for G to live primarily with the mother and to spend time with the co-parent mother on a graduated basis until G was 30 months. When G was 30 months, she was to spend time with the co-parent mother on one weekend from 5.00p.m Friday until 8.00a.m. Sunday, and on the other weekend from 5.00p.m. Friday until 5.00p.m. Saturday, and from 4.00 p.m. to 7.00p.m. each Tuesday. Those orders also provided for G to spend holiday time with the co-parent mother, again on a graduated basis, and time on special days.
G has been spending time with the co-parent mother on each Tuesday afternoon until 7.00p.m. (extended after mediation in October last year) so she collects G from school on a Tuesday rather than at 4 pm.
In relation to each party’s responsibility for major decisions concerning G’s welfare, Order 4 of the July 2003 Orders provides:
That the Applicant Co-parent Mother and the Respondent Mother (the parties) have joint responsibility and shall make joint decisions regarding the long term care, welfare and development of G including, but not limited to, G’s schooling and education, significant medical treatment, and overseas travel.
A Notation was included in the Terms of Settlement which read:
It is noted that given G’s age, these Orders will be reviewed when G commences school in or about four years time. [i.e in or about July 2007].
The co-parent mother filed an application to vary the 2003 orders in June 2007 (amended in November 2007) seeking orders to extend G’s time with her, again providing for G’s time with her to increase on a graduated basis so that she could participate more in G’s schooling and day to day activities. The co-parent mother says, in her affidavit in support of her application for final orders, that the mother was unwilling to discuss with her increasing the time G was spending with her and was not prepared to attend mediation. The mother sought an order, on a final basis, that the co-parent mother’s application be dismissed. The mother says in her affidavit in support of final orders, that she was surprised to be served with an Application, given the amicable way in which the parties had been able to alter arrangements to suit each other and G.
On 2 November 2007, the co-parent mother’s application for final orders was listed for mention. On that day, I listed the application for hearing before me on 4 and 5 August this year, and ordered a family report. The parties agree that the mother did not mention any plans or preliminary plans she had to relocate to live with her mother at B on the Central Coast.
On 21 December 2007, the mother’s solicitor sent a letter to the co-parent mother’s solicitor which said:
We wish to advise that we have been contacted by our client to indicate that she will be moving to B at the end of January 2008.
This was the first the co-parent mother knew of the mother’s proposed move. The letter went on to say the mother proposed that G spend every third week with the co-parent mother during school terms from the end of January 2008, and that G would be attending B School on the Central Coast from the beginning of the 2008 school year. The mother acknowledges that she did not consult the co-parent mother about the move, or the proposed change of school for G, in accordance with the 2003 Order for joint parental responsibility.
On 10 January 2008, the co-parent mother’s solicitor wrote to the mother’s solicitor advising of her opposition to the relocation and requested an undertaking that the mother would not leave the L area with G before final determination of the proceedings. The mother apparently did not provide that undertaking.
On 23 January 2008, the co-parent mother commenced these interim proceedings to restrain the mother from changing G’s place of residence from outside the L area, and restraining the mother from changing G’s school from S School. She says in her affidavit that she made the application on an urgent basis when the mother advised her of her intention to move with G to B at the end of January 2008.
In her urgent application, the co-parent mother sought an extension of G’s time with her by one night on alternate weekends and by extending her time on Tuesday afternoons to overnight each week. She also sought specified holiday time. The co-parent mother amended her application at hearing to leave out the change to the Tuesday afternoon arrangement. The mother sought an order that she be permitted to live with G in B, G attend the B School, and that G spend alternate weekends with the co-parent mother.
The co-parent mother is living with her new partner, Ms B, in a home they have bought in Toongabbie; a 10 minute drive from the mother’s previous home. The co-parent mother and Ms B work full time.
The mother has not re-partnered. The mother was living with G in her own home in L until approximately 2 weeks ago. The mother sold that home a few weeks ago and started the move to live with her mother in B from late December/early January this year. She says she had to sell her home because she could not afford the mortgage payments, which were rising, as well as her other necessary commitments including legal fees for these proceedings.
The mother has enrolled G at B School in Year 1. G has now been at the new school for just over a week.
The issue for determination by the Court is whether, pending final hearing in August, G should be returned to L to live so that she can return to S School and spend time with the co-parent mother as she did before the mother’s move, or whether the mother should be permitted to remain in B, to change the current parenting arrangements to accommodate the increased distance between the parties and to keep G at B School.
At the outset of the hearing, I canvassed the options available to the Court in this case. The co-parent mother had not sought an order that G live with her in L if I ordered G’s return to Sydney and the mother decided to remain in B (except to the extent necessary to assist the mother.) Ms Harland, for the co-parent mother, said her client would be willing to amend her application orally to seek an order for G to live primarily with her, if the mother decided to remain in B in those circumstances. The co-parent mother deposed to having considerable flexibility in her working hours and to being able to work from home which would enable her to take G to and from school. Ms B works very close to S School and is able to collect G if necessary. However, the mother’s counsel made it clear that if the Court ordered the return of G to the L area, the mother would also return to the L area, pending final hearing.
Mr Foster said the mother’s final application would now be amended to seek an order for relocation to B.
The mother says she could not afford to remain living in her home in L, while meeting the mortgage payments, from the salary she received from her part-time position. Her payslip for 1 November 2007[1] discloses a fortnightly net income of $1344.00 which she says is not enough to meet her commitments. She deposed to a mortgage of $191,000 in January 2008 - partly as a result of draw-downs to meet legal bills and partly due to additional debts of approximately $25,000. The mother said meeting legal costs has been a constant struggle over the years. She said her mortgagee had advised her that repayments would soon rise and she was aware her interest only loan was soon to expire, so she would be required to pay principal and interest. She said her mother had offered to relieve her of her financial burden by having her and G live with her rent free. The mother said this would enable her to work fewer hours and reduce the stress under which she was living. Supported by a letter from her doctor, the mother said she has suffered poor health in the last 6 months as a result of stress caused by financial concerns and these proceedings.
[1] Exhibit 2
Mrs J, the mother’s mother, deposed to providing the mother with financial support “over the years.” She says she has lent her money to meet some mortgage payments, to pay bills when she has been short of funds, to pay counsellor’s fees, legal costs and she bought G a winter jacket for school. She says she has bought various items for the mother including a television, washing machine, fridge, air-conditioner, lap top and has paid for a number of trips. She says the mother’s father has paid $5,000 to help the mother purchase a new car. She says she has given her money to pay off a long standing legal debt. She says the mother has been struggling financially since her separation from the co-parent mother and her suggestion that she live with her rent-free was to relieve her of the need to keep her L home, involving paying a mortgage, and help her get on her feet financially.
The mother says if she rents in L she will pay $320 a week for a house similar to the one she has sold, and she would only be about $100 better off than when paying the mortgage, so she would still not have enough money to meet her expenses. The co-parent mother disputed the mother’s assertions about her financial position. She said the mother had significant equity in the home when the parties settled their property in 2005/2006 and the mother was working a significant number of hours. She said the mother had talked about buying various and expensive items in recent times. She also claimed the mother could rent an appropriate home in L for $250 a week on the basis of internet searches,[2] or buy another well appointed property in the L area for under $250,000 with excellent facilities, using the equity from the sale of her present home.
[2] Exhibit 1

Legal principles

The principles governing parenting cases are set out in Part VII of the Family Law Act 1975. The Full Court in Goode & Goode [2006] FLC 93-286 says in interim proceedings, as in final proceedings, the Court must follow the legislative pathway. This authority applies to all interim parenting proceedings, including interim proceedings involving relocation.
In the recent decision of Masling and Milliken [2007] FLC 93-343, her Honour Justice Boland examined in detail the impact of the 2006 amendments to relocation cases, including interim relocation cases.
Her Honour noted in that decision, at paragraph 66, that the effect of an order for shared parental responsibility is to require parents to jointly make a decision about a major long term issue for the child. Major long term issues include matters such as the child’s education, religious and cultural upbringing, health, name and “changes to the child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.”
Her Honour then considered the principles to be applied in determining a parenting application when one party wishes to relocate. Her Honour says at paragraph 74 “the Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made” She says at paragraph 75 of that decision:
It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.
At Paragraph 77 her Honour says:
The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
Her Honour later set out the earlier core principles which must be applied when determining a parenting matter involving relocation, and held that they remain valid:
·The child’s best interests remain the paramount but not the sole consideration;
·A parent wishing to move does not need to demonstrate compelling reasons;
·A judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
·The child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.
Her Honour found there was no legislative mandate to consider different criteria in interim parenting applications involving relocation to final applications, although in an interim application there will be an abridged inquiry. Her Honour said at paragraph 83 that before the changes to the Act of 2006, the principles in Cowling [1998] FLC 92-801 regarding the factors relevant to a child’s stability, led generally to courts prohibiting relocation on an interim basis, or made orders which provided for the return of a child, if only a short period had elapsed after a unilateral relocation by one parent.
At paragraph 84, her Honour says:
The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
Her Honour, after considering the impact of Goode’s case on the principles in Cowling, says at paragraph 86 and 87:
I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
Following the legislative pathway, section 60CA of the Act provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the 2 primary considerations set out in s. 60CC(2) and the 13 additional considerations set out in s. 60CC(3) as far as they are relevant. Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities.
“Parent” is not defined in the Act, except in relation to adoptive parents. However, the authorities make it clear that a co-parent mother is not a “parent” under the Act. I raised with the mother’s counsel, Mr Foster, and with Ms Harland for the co-parent mother, whether s. 60CC(2)(a) applies to the co-parent mother, given she is not a “parent” under the Act, but rather “a significant other person”. Neither was prepared to answer that question directly. The mother’s counsel conceded that it probably did not matter, as one of the principles underpinning the objects of Part VII of the Act (s. 60B(2)(b)) is that:
Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).
and there is no dispute that the co-parent mother is such a significant person to G. Counsel submitted that given the parties had agreed to shared parental responsibility, the co-parent mother is without doubt a person G has a right to spend time with, and communicate with, on a regular basis. Ms Harland agreed with Mr Foster.

The Full Court in Re C & D [1998] FLC 92-815 said, referred to by Federal Magistrate Brown in Hammond and Johnson [2006] FMCA fam 514, that:

This court made it clear in Rice and Millar [1994] FLC 92-415 and more recently in Re Evelyn [1998] FLC 92-807 that the biological parent does not stand in any preferred position and that fact does not in any way impinge upon the principle that the best interests of the child are paramount.

I find it unnecessary to make a finding as to whether the first primary consideration under s.60CC(2)(a) applies to the co-parent mother here, given the principle just referred to, the existence of a joint parental responsibility order and the additional considerations to which I must have regard under s.60CC(3). Those factors I deal with now.

The child’s expressed views and the weight those views should be given.

G is not yet 6 and neither party submits her views should be given any weight given her young age. In any event, there is no objective evidence before me as to G’s views.

The nature of the relationships between the child and each parent and the child and other persons.

The parties agree that G has a strong and loving relationship with her mother, and the co-parent mother, while acknowledging G has lived primarily with the mother since the parties’ separation when she was 11 months old.
Each party refers to other close relationships enjoyed by G. The co-parent mother’s partner, Ms B, deposes to getting on well with G and to them enjoying their time together. The co-parent mother says G enjoys a close relationship with her sister’s children, to whom she is close in age, and one of whom goes to S School. She says G has regular contact with her brother in law’s family and with her partner’s extended family, especially her partner’s mother, who she says treats G like a grand-daughter.
The maternal grandmother says she has spent considerable time with G since she was born. The mother says G is close to her brother’s children, and is very close to the mother’s father.
I am satisfied G has formed close relationships with family and friends in Sydney, and on the Central Coast, and I am not satisfied this factor favours either proposal. However, I take into account that G has a strong relationship with the mother and the co-parent mother.

The willingness and ability of each parent, and in this case, each party, to facilitate and encourage a close and continuing relationship between the child and the other parent; the capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent.

The capacity of each party to provide for G’s day to day needs is not a significant issue, although the co-parent mother deposes to some concerns about the mother’s capacity to meet G’s emotional needs. She says the mother has slept in the same bed as G, and was still doing so, as late as December last year when G was nearly 6. The co-parent mother says the mother is not giving G the chance to develop independence from her. However, I give minimal weight to this factor in reaching a decision.
The significant factor to which I give consideration here is the extent each party facilitates G’s relationship with the other.
The co-parent mother complains that the mother is not supporting G’s relationship with her. In particular, she says the mother’s decision to move away from L unilaterally and without consultation with her, despite their joint responsibility for such a decision, demonstrates the mother’s lack of support for G’s relationship with her.
In addition the co-parent alleges:
i)The mother encourages G to call her maternal grandmother ‘mama’ and the paternal grandfather ‘daddy’ which causes G confusion given she already has a ‘mum’ (the co-parent mother) and a ‘mummy’ (the mother).
ii)In March 2007, the mother told her she was not allowed to collect G from school and was not permitted to speak to anyone at the school in the mother’s absence.
iii)The mother has not provided her with reports as to G’s progress at school, or her progress with reading, with which she was having some difficulty. She says the mother has only given her G’s school books once at the end of first semester last year.
iv)Despite her offers to do so, the mother has not asked the co-parent mother to collect G from school, or to take her to school, when the mother has been unavailable due to work commitments.
v)G has told her the mother has said, “mummy says you’re not my real mum” and has said, “mummy doesn’t like it when you pick me up from school.” And G reports that the mother has told G to say she doesn’t like going to the co-parent mother’s house.
vi)The mother has enrolled G in extra-curricular activities without consulting her.
The mother, in her affidavit, disputes many of these facts. She deposes to being flexible in relation to the parties’ parenting arrangements, especially when the co-parent mother has been running late, and to permitting G to spend block holiday periods with the co-parent mother outside the terms of the orders. She says she has always acknowledged the co-parent mother’s importance to G, and has always involved the co-parent mother in all aspects of G’s life, including schooling and attending interviews at the school. She in fact criticises the co-parent mother for not always keeping her informed of significant matters.
The mother alleges:
i)The co-parent has referred to Ms B, to G, as her ‘step-mum’.
ii)The co-parent bought G a dog without considering the impact on G of not being able to take the dog home with her.
iii)The co-parent left G with her partner’s mother to be minded.
iv)The co-parent mother talked to G about these Court proceedings.
I am unable to resolve these disputed factual issues between the parties at interim hearing.
However, I have formed a preliminary view that the parties have cooperated effectively at times, for example, when arranging to meet with G’s teacher in October last year to discuss G’s reading issues, that communication between the parties has at times been difficult, and that the co-parent mother has lost confidence in the mother’s willingness to facilitate G’s positive relationship with her.
I give this factor considerable weight.

The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision –making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.

The co-parent mother objects to the mother’s assertion that she has not assisted financially in G’s support. The co-parent mother paid the mother the nominal sum of $89,730 in 2006, valued at $150,000 using present value tables, by way of lump sum child maintenance, when the parties entered into a Deed of Agreement to resolve financial issues between them. This enabled the mother to retain the property at L she has recently sold, and to continue to live there with G.
I am not persuaded on the evidence so far available that each party has not appropriately exercised her parental responsibility towards G, except as earlier noted.

The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.

The co-parent mother says she will not have the chance to collect G from school on Tuesdays and alternate Fridays if G is at B. This will deprive G of the chance to have the co-parent mother at school to meet other parents, and her friends, and to talk to her about the school day, as G does immediately after school finishes. The co-parent mother says G would not continue to enjoy the opportunity of being primarily cared for by either the mother or the co-parent mother, if at B.
The co-parent mother says G would miss out on seeing her extended family if on the Central Coast.
The co-parent mother says she has strong family connections with S School, where she attended as a child. Her sister’s daughter goes to that school, and her sister is responsible for the after school care at the school. She says if the relocation were permitted, G would miss out on this community.
The co-parent mother says G became more and more settled and confident at school as 2007 progressed. She relies on her Semester 2 report [3] which says:
G is a kind and well mannered student. It has been pleasing to see the gains she has made in her confidence when interacting with others… G makes thoughtful contributions to class discussions and enjoys working closely with others. Her sensitive and thoughtful nature has helped make her a pleasure to teach…
[3] Annexure E to co-parent mother’s affidavit sworn 23 January 2008.
For her part, the mother says she moved G at the beginning of the school year because she thought G would settle in better at the beginning of a school year. She says G is settling in well. She says it would be disruptive for G to leave her grandparent’s home, where she is very happy, to live in rented accommodation in L.
The mother says if she is forced to return to L, she will continue to struggle financially, and be unable to give G any extras.
These are all matters to which I have given consideration.

The practical difficulty and expense of a child spending time with and communicating with a parent

I have already referred to the distance between B and L – approximately 1.5 to 2 hours. If G were to live at B, G would spend less time with the co-parent mother, given the practical difficulties this distance would involve.
There was no other evidence before me as to practical issues.

The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable.

This is not a factor to which I have regard.

Parental Responsibility

As already noted, the parties agreed to a shared parental responsibility Order in July 2003. Neither party seeks to vary that order in these proceedings.

Submissions

Ms Harland, for the co-parent mother, submitted that if the mother were permitted to relocate, it could have far-reaching consequences for G. In a day to day sense, G would not see her co-parent mother for 10 days between visits if alternate weekends, instead of, at most 7 days, as presently occurs. Ms Harland submits the timing of the mother’s notice to her client of the proposed move, being just before Christmas, was to minimise the co-parent mother’s opportunity to respond. Ms Harland submits the Court should be satisfied that the mother’s conduct unequivocally demonstrates the mother’s negative attitude to the co-parent mother’s involvement with G, and shows a disregard for G’s welfare. Ms Harland submits G has strong connections in both the L area and the Central Coast. She submits that the court should not permit the relocation without an expert consultant having the opportunity to explore the attachment issues between G and each party. On a practical level, Ms Harland submits that if the mother has sold her home, she can rent accommodation relatively inexpensively in the L area. She tendered a bundle of pages from the internet showing the availability of rental homes at $200 to $250 per week and homes for sale at under $250,000[4]. Ms Harland further submits that as Mrs J says she has been assisting the mother financially for many years, and is comfortable financially, she could, if necessary, continue to assist the mother, at least until final hearing.
[4] Exhibit 1.
Mr Foster, the mother’s counsel, submits that the Court should take into account the high likelihood of making a final relocation order when the matter is finally determined in August. Counsel submits that B is only a short distance - 1.5 to 2 hours away - and given the history of cooperation between the parties, the court should conclude that the mother will continue to facilitate G’s time with the co-parent mother. He says the relocation will only mean a slight reduction in the present time arrangements for the co-parent mother, being the Tuesday afternoons. Mr Foster submits, because it is clear G has a close attachment to the co-parent mother, missing Tuesdays will not affect such a well established relationship. Mr Foster contends that the co-parent mother wants her ‘cake and to eat it too’, being content to leave the mother with the whole of the financial responsibility for G, without regard to the effort and stress involved for the mother caring for G as a single parent, while trying to work and meet significant financial commitments. Mr Foster submits that given the likelihood of the Court permitting the relocation at final hearing, the court should allow the relocation now, to avoid disruption to G and the mother, who have now settled on the Central Coast.
The Independent Children’s Lawyer, Mr Sperling, supported the co-parent mother’s application to bring G back to Sydney, pending final hearing. Mr Sperling submits that the parties made a commitment in 2003 to a joint parental responsibility arrangement for G which is consistent with the objects of Part VII of the Act. He says the parties reached agreement as to the co-parent mother having regular time with G. He says both parties are involved in G’s school and have a significant role in her life. He says the financial information available from the mother is limited, and does not take into account the $100K or so she will receive on settlement of the sale of her home in approximately 2 weeks time. Mr Sperling says G is likely to be adversely affected by a relocation, given she is used to regular and frequent time with the co-parent mother. He expressed considerable concern as to the mother’s attitude to the co-parent mother in making the move unilaterally, at a time when the co-parent mother was applying to the court for increased time with G. He contends that the Court should not pre-determine the issue at an interim stage, which would be the practical effect of permitting the relocation now.
It is acknowledged by the mother that she did not bring to the Court’s attention, when the matter was mentioned in November last year, or at any time before that, that she was planning or considering a move to the Central Coast involving a change in G’s school, or that she proposed amending the final orders she sought to include an order to relocate with G to B. The mother was aware the co-parent mother required an undertaking from her that she would not re-locate until final determination of these proceedings, to avoid urgent proceedings. Yet she proceeded with the move.
The mother only filed material in relation to relocation in response to the co-parent mother’s application to bring G back to Sydney. Yet the mother, in her affidavit, says her decision to move was prompted by conversations she had with her mother in October last year, before the November mention at court. I am satisfied the mother chose not to disclose to the Court, or to the co-parent mother, that she was planning to move when it was open to her to do so. I find she failed to meet her obligations under the 2003 joint responsibility Order.
The Full court in Campbell and Spalding [1998] FamCA 66, a 1998 decision involving a relocation by a mother and two children from Brisbane to D, agreed with Justice Barry, the Trial judge in that case when his Honour said:
I believe the standard to be applied on an interim decision is even more stringent than on a final basis. That where a relationship ends it is not for one party to relocate thousands of kilometres away from the other party on a unilateral basis without any consultation whatsoever.
Her Honour Justice Boland in Masling and Milliken said this authority remained good law. Her Honour says at paragraph 88:
It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in Campbell and Spalding remain apt and relevant to determination of these cases.

The mother has not moved thousands of kilometres away, but nevertheless, if she is living on the Central Coast there are practical limitations to the time G can spend with the co-parent mother.
If G lives in L with the mother, the parties agree the parenting arrangements in place before her move should continue, subject to one matter. The co-parent mother asks that G remain with her until Monday morning before school, rather than returning to the mother on Sunday afternoon. The mother asks that G be returned to her on Sunday afternoon as was the arrangement before her move to B.

Conclusion

As noted by her Honour Justice Boland, the Court’s inquiry as to G’s best interests is necessarily abridged at this interim stage. I have not had the benefit of any independent expert evidence, which will be available to the Court at final hearing. I have not heard from either party, and much of their evidence remains untested. I am therefore unable to determine what parenting arrangements will best promote G’s welfare in the long term. That will be for determination in August.
It is regrettable that whatever Order I make in this case, at this interim stage, will adversely impact on G, at least in the short term.
If I order that she live in L with the mother, she must be taken out of a school she has only just started in Year 1, and where the mother says she is happy, taken away from her grandmother’s home, where she has been living for the past several weeks, and has been led to believe she will remain living, and she must adjust to new accommodation. If the mother’s application for relocation is then successful on a final basis, G will again have to change schools, and she will be required to adjust to a new situation all over again.
If I permit the mother to relocate to B now, G’s schooling will not be disrupted very early in the year, her living arrangements will be maintained at her grandmother’s, and the mother may be temporarily relieved of some of her financial stress and may be in a position to reduce her working hours. However, G will spend less time with her co-parent mother, and her friends and family in the L area, and will not enjoy the advantage of progressing in the school with which she is most familiar, and in which she has been progressing well. She will not have the opportunity to move between the parties every few days, and to enjoy the flexibility their close proximity has offered until recently. She will not have the benefit of the co-parent mother being regularly part of her school life during the week.
As already noted, I have given considerable weight to my concerns about the events leading to the co-parent mother’s relocation which she concedes was in breach of the Order for joint parental responsibility. I have concerns about the timing of her notice to the co-parent mother. I have given weight to my concerns about the mother’s attitude to G’s relationship with her co-parent mother in taking the action she did (in the full knowledge that the co-parent mother opposed her relocation, she knew the matter was listed for hearing in August, and that her plans to relocate had not been made known to the Court as late as November last year) when I have decided she had given at least some thought to the proposal. I have given consideration to the financial issues raised by the mother.

As already noted, G has a strong and loving relationship with her mother and her co-parent mother, and is accustomed to spending significant time with her co-parent mother. G was happily settled at

S School until the end of 2007. There is a place available for her in Year 1 in 2008.
On a balancing of factors, and given the limited nature of the evidence before me at this stage, I have decided it is not in G’s best interests to permit the relocation to B as sought by the mother. I am satisfied the mother will be in a position to afford rental accommodation in L, once she is relieved of the burden of meeting mortgage payments and has received the net sale proceeds of her home. I take into account that the final hearing is only a few months away. If it is necessary for G to live with the co-parent mother while the mother makes the practical arrangements necessary to move back to L, that will occur, and the co-parent mother must make herself available to take G to and from school each day during the period G is living full time with her.
I have given consideration as to whether the time G spends with the co-parent mother should be extended on alternate weekends until Monday morning, but have decided, given the adjustment difficulties G may face, at least in the short term, her routine should continue as it was before the mother’s relocation.
I am satisfied the orders I am about to make are in the best interests of G at this interim stage.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Skye Owen

Date: 19 February 2008