Gaffney and Cox

[2016] FCCA 475

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAFFNEY & COX [2016] FCCA 475

Catchwords:
FAMILY LAW – Parenting – relocation – young child – balance of considerations.

Legislation:

Family Law Act 1975 (Cth)

AMS & AIF (1999) CLR 160
Champness & Hanson [2009] FamCAFC 96
McCall & Clark (2009) FLC 93-405
MRR & GRR (2010) 240 CLR 461
Paskandy & Paskandy (1999) FLC 92-878
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115

Applicant: MS GAFFNEY

Respondent: MR COX

File Number: DGC 4156 of 2010

Judgment of: Judge McGuire

Hearing date:

17 & 18 December 2015

1 & 2 February 2016

Date of Last Submission: 2 February 2016

Delivered at: Melbourne

Delivered on: 8 April 2016

REPRESENTATION

Counsel for the Applicant: Ms Smallwood

Solicitors for the Applicant: Clancy & Triado

Counsel for the Respondent: Ms Stoikovska

Solicitors for the Respondent: Pearsons Lawyers Pty Ltd

ORDERS

1. That all extant orders in respect of the child X born (omitted) 2010 (“X”) be discharged save and except the consent order made between the parties on 04 April 2016.

2. That the parents have equal shared parental responsibility for X.

3. That X live with the mother and that she be permitted to relocate his principle place of residence to the (omitted) region of Southern Queensland.

4. That X spend time and communicate with the father as follows:

   (i)In each Queensland gazetted term school holiday from the first Saturday until the second Monday with the father to choose the flight times for X’s travel and to advise the mother of such flights no later than sixty (60) days prior to the commencement of the school holiday, with the mother being responsible for the costs of airfares for X and any required accompanying person.

   (ii)For four (4) weeks in each summer school holiday and to commence 23 December in 2016/2017 (or otherwise as agreed between the parties) and in each alternate year thereafter and to commence 26 December in 2017/2018 (or otherwise as agreed) and in each alternate year thereafter, with the father to nominate the flights and to advise the mother not less than sixty (60) days prior to the commencement of the relevant school holiday, with the mother being responsible for the payment of the costs of airfares for X and any required accompanying person.

   (iii)On three long weekends per year in Melbourne at the choice of the father but upon no less than sixty (60) days prior notice to the mother in writing, with the father to nominate the flights, and for the mother to be responsible for the costs of X’s air travel and that of any required accompanying person.

   (iv)At any reasonable time in Queensland but in any event on not less than one weekend per school term on the election and nomination of the father, provided the father give the mother not less than forty two (42) days prior notice in writing or by email, of his intention to exercise each such period of time and with the father to be responsible for his own travel and accommodation costs.

   (v)At such other times as agreed between the parties from time to time in writing.

   (vi)By telephone, Skype, FaceTime or other medium on a reasonable basis.

5. The parties MS GAFFNEY and MR COX their servants and agents be and are hereby restrained from removing the child X born (omitted) 2010 from the Commonwealth of Australia without the written consent of the other party, or by order of the Court.

6. The Court requests that the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s name on the Watch List at all points of international departure from Australia for the purpose of preventing the removal of the children from Australia in breach of these orders for a period of 24 months from the date of these orders.

7. The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police Forces and Services of the various States and Territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain MS GAFFNEY and MR COX from removing the said child X born (omitted) 2010 from the Commonwealth of Australia.

8. Upon expiration of the period referred to in Order 6 above and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.

NOTATION:

(a)The airport Watch List orders in respect of X is made in the context of and subject to the consent order made between the parties on 04 April 2016 suspending the prior airport Watch List order allowing X to travel to (country omitted) between 15 April and 27 April 2016.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 4156 of 2010

MS GAFFNEY

Applicant

And

MR COX

Respondent

REASONS FOR JUDGMENT

Applications

1. These proceedings concern the parties’ only child, X, born (omitted) 2010 (aged five years).

2. The parenting issues for X revolve around the mother’s wish to relocate with X from Melbourne to live on the (omitted), Queensland.  The father opposes that application.

3. In final addresses, it is now clear that there is no issue that the parents should share parental responsibility for X.

4. The mother proposes that X live with her on the (omitted) and spend time with the father in Melbourne for the majority of each term school holiday and on an equal time basis during summer school holidays.  The mother also proposes that the father spend time with X in Queensland at any reasonable time upon notice to the mother, together with regular Skype and telephone contact. She says that she will pay for four return flights for X from the (omitted) to Melbourne each year, and also for two return flights for the father from Melbourne to the (omitted) to coincide with X’s time with the father during winter and/or spring school holidays.

5. If she is not permitted to relocate X from Melbourne, then the mother would not herself relocate. If this is the case, then she argues for a regime whereby X live with her but spend time with the father on a fortnightly cycle of Friday after school until Monday at the start of school on the first week, and overnight on Thursday in the second week together with school holiday time. This is effectively the current arrangement enshrined in final orders made on 15 April 2014.

6. The father seeks an order that the mother be restrained from relocating X more than 20 kilometres from his residence in (omitted) or wherever he resides. He proposes that the final orders of 15 April 2014 remain in full force and effect.

Background

1. The mother is from (country omitted).  She came to Australia in 2005.  She is 36 years of age.

2. The father is 34 years of age.

3. It seems that the parents met in 2008 at a (omitted) in Melbourne where the mother was an employee and the father a patron.  The evidence does not suggest that the parties had any form of relationship in a committed or traditional sense. The mother became pregnant in 2009. The father was then visiting Melbourne from his employment in (country omitted). The mother visited (country omitted) on a couple of occasions and holidayed with the father in (country omitted). X was born on (omitted) 2010. At this time the mother was in Melbourne and the father was in the (country omitted).

4. The mother initiated proceedings in the Federal Magistrates Court in December 2010. The father raised issues of paternity which ultimately determined that he was X’s father. The mother secured her final orders on 26 September 2012 and undefended by the father.

5. The father returned to Australia to live in December 2012 and it was then that he met X for the first time. The orders obtained by the mother had provided her with sole parental responsibility for X and that the father’s time with X be reserved.

6. At the hearing before me and in his affidavits, the father explains that the hiatus in any involvement for him in X’s life between 2010 and 2012 was based on poor legal advice from a solicitor relative who did not have skills or experience in family law.

7. It is clear that the parties themselves were unable to successfully negotiate a regime of time for the father with X upon his return to Australia. The father therefore commenced proceedings in this court by application of 26 April 2013.  Final orders were made by consent on 15 April 2014.

8. The father is married to Ms K. There are no children of that relationship.

9. The mother is in a relationship with Mr B.  He lives on the (omitted) where he owns a business involved with the (business omitted).  Mr B’s family live on the (omitted).  He has no children although he and Ms Gaffney are expecting their own child later this year.  They are engaged to be married and intended to enjoy that ceremony in (country omitted) in (omitted) 2016.

10. They have maintained a long‑distance relationship from about (omitted) 2014, and for approximately the first six months of 2015 Mr B trialled living in Melbourne and travelling back to the (omitted) regularly to attend to his business. He says that this was practicably and financially not viable.

11. The mother owns an apartment in Melbourne and has completed some tertiary education since her arrival in Australia. Her employment history is vague and in some senses is dubious. She says that she is now involved in home duties and claims an interest in a business, perhaps subsidiary to that of Mr B’s, on the (omitted).

12. The father is employed in the (omitted) industry as a (occupation omitted).

13. As a part of her application, the mother seeks the removal of an Airport Watch List order so as to enable her to travel with X to visit family in (country omitted). She has previously travelled and obviously returned with X to Australia.

14. It is clear from the evidence that should the Court not sanction a relocation of X to Queensland then the mother would remain in Melbourne as his primary parent. As such, the father’s proposal continues to delegate the role of primary parent to the mother.

The Issues

1. The primary issue for the Court is whether X’s best interests are served by his mother relocating him to Queensland and, specifically if so, then could X’s relationship with his father be maintained or, indeed, properly and fully established.

2. There is an issue as to the mother’s willingness and ability to promote X’s relationship with his father should she be permitted to relocate.

3. There is an issue raised on the evidence as to the practicality of the mother’s proposals for X’s time with the father and the ability of she and Mr B to finance that travel.

4. As with most parenting matters involving a potential relocation, there is an issue as to the impact, if any, on the mother’s capacity to parent X should she be required to remain in Melbourne and her freedom of movement as an adult be thwarted.

5. The mother asks for the removal of an existing airport watch list order in respect of X. The father opposes this course.

The Mother’s Case

1. The mother’s case is effectively that she should be permitted her freedom of movement. She says that she has promoted X’s relationship with the father but within the context of Mr Cox showing no interest whatsoever and playing no role in X’s life throughout his first two years. She says that the relationship between X and his father is established and would endure the practical changes necessitated by a relocation of X to Queensland.

2. The mother says that she is in a committed relationship with Mr B and is pregnant with his child. She says that a refusal of her application would result in her being effectively the single mother of her two young children in Melbourne with her relationship with Mr B (and that of he with his own child) being limited to a “fly‑in fly‑out” basis because of Mr B’s commitments on the (omitted). She says that she and Mr B had previously trialled him living in Melbourne and running his business from Melbourne but that an actual and negative financial impost resulted.

3. The mother counters the father’s argument that she manipulates the child and denigrates him to the child by firstly denying that this is the case and noting that, in any event, there is, according to the family reporter, no manifest effect on the child who was observed as having an  an easy and comfortable relationship with his father.

The Father’s Case

1. Mr Cox argues that his relationship with X is still a developing one. He says that the imposition of distance and less frequency in that relationship would impact on it negatively and thwart its proper and full development. In this sense he says that a relocation of X to Queensland would deny him regular and/or spontaneous involvement in X’s schooling, extracurricular activities and life in general.  In summary, he argues that the relationship between father and child has not yet fully developed so as to allow it to endure a relocation.

2. The father says that the mother historically has not facilitated or encouraged the relationship. He says that she has at times denied him time with X necessitating court proceedings. He says that he is denigrated to and in the presence of the child by the mother. He says that the financial position of the mother and Mr B, on their own evidence, is such that the Court should not be confident that they will be able to finance their proposals for X’s time with him.

3. The father says that there is evidence that the mother is of a strong, assertive, stoic and “streetwise” demeanour such that she could successfully parent X and her anticipated infant from Melbourne whilst maintaining her relationship with Mr B.

The Family Reports

1. The Court had the benefit of two family reports from Mr T, dated 23 July 2013 and 18 May 2015.  Although not being unequivocal in his recommendations, it is clear that in his final report he recommends against X’s relocation.  Mr T gave evidence and was cross‑examined extensively during the hearing and repeated the sentiments of his report.

2. Mr T notes that X is still young and not starting school until this year.  At [104-106] of his later report, Mr T says:

   104. However, in making its decision, the Court may wish to take into account the following points.  X is still young.  He only recently turned five and will not start school until next year.  In this regard, if X were eight, nine or 10, the child situation might be considered differently.

   105. In the history of this case X and his father have only spent time together for less than three years and therefore are still developing their relationships.  It will be recalled Mr Cox met X for the first time only after Mr Cox returned to Melbourne from (country omitted) in 2012. 

   106. From observations during the preparation of this family report it is clear that X has a strong and developing attachment to his father and that Mr Cox enjoys a strong bond with X.  In the writer’s opinion these positive developments should not be put in jeopardy.

3. At [109] of that report Mr T notes that the mother’s proposal would reduce X’s actual quantity of time with his father “by about 50 per cent”.  He continues at [110]:

   In this writer’s view it is respectfully suggested this diminution of the time presently being devoted to the developing relationship between X and his father, and the paternal family, should not be acceptable as the price for Ms Gaffney’s relocation to Queensland.

4. In cross‑examination the mother’s counsel put to Mr T that the mother’s proposal would involve some frequency of time between the father and X and perhaps greater than that contemplated by him.  Mr T’s response was:

   I think that X’s relationship with his father is very, very important for both. It is a developing relationship and present arrangements are supporting that relationship and the mother’s proposal would diminish that relationship and put them under pressure.

5. It was also put to Mr T in cross‑examination that various Full Courts have emphasised that it is the quality of a child’s relationship with the parent that is of most significance rather than simply the quantity of time. Mr T replied that such a proposition is “too simplistic” but agreed that it is also “too simplistic” to say that “quantity” is more important than “quality”.

6. Mr T was challenged as to his observations and reporting of the character differences between the father and the mother. The implication of which was that his observations of the parents’ personal character traits had unfairly influenced his conclusions and recommendations.  For example, he describes the father as “sensitive, intelligent, informed, basically an honest person”.  At [67] of his first report, Mr T described the mother as:

   In interview (the mother) struck the writer as a smart, tough minded, streetwise survivor. She also impressed the writer as being quite blasé, and, possibly disingenuous in relation to some important aspects of her life; for example, and particularly, her employment history in Australia.

7. Mr T was able to agree in cross‑examination that X would be likely to flourish if his mother was happy in her home living and parenting environment.

8. In his evidence, Mr T confirmed what he says at [99] of his second report, being:

   At no stage during the writer’s discussion with X did the child have anything negative to say about his father, or his father’s family;  only that he enjoys the time he spends with them and looks forward to it.

9. Mr T agreed that these observations at [99] are suggestive of the mother being positive of the father to the child or at least not denigrating the father or his family to X.

10. Mr T was an impressive and assertive expert witness. He gave the Court the benefit of his observations and conclusions as to the various personal character traits of the mother and the father.  He was able to make concessions (set out above) during his cross‑examination but essentially maintained his theme and opinion that: (i) X’s relationship with his father was a developing one; (ii) that the placing of distance and less frequency in that relationship would “diminish it”.

The Other Evidence

The Applicant Mother

1. Ms Gaffney relied on three affidavits read into evidence, being those sworn 25 March, 12 October and 2 December 2015.

2. My observations of Ms Gaffney were generally of an honest witness.  Her demeanour at times was blunt and somewhat “harsh” but from my observations of her generally, symptomatic of her personality. Her evidence satisfied me that she is committed both in her relationship with Mr B and her willingness to maintain a relationship for X with Mr Cox.  The evidence, supported by my observations of her in the witness box, were of a stoic and self‑sufficient young woman.  She was at times critical of Mr Cox and particularly of his lack of involvement in the first two years of X’s life.  It appeared to be her nature to be forthright and I did not gain the impression that she was in any way tapering her evidence to shore up her case for relocating X.  To the contrary, if she felt she had reason to be critical of the father then she was able to say so.  Conversely, when challenged as to the viability of her proposals her evidence was equally forthright and considered.  It is true, however, that she also exposed a sense of entitlement in her parenting of X which I again attribute to her own personality rather than any calculated malice and based on what she sees as her being delegated the role of sole parent and provider for X in the first two years of his life.

The Father

1. Mr Cox relied on his extensive trial affidavit sworn 30 November 2015.  Mr Cox was also an impressive and, from my observations, honest witness. It is clear, however, that he is of a very different and perhaps “softer” demeanour than Ms Gaffney. Mr Cox’s commitment to X and his involvement in X’s life appeared genuine and altruistic. I am satisfied that Mr Cox is genuinely regretful of his lack of involvement in the first two years of X’s life and I accept his explanation that he was the victim of very poor legal advice and it perhaps reflects his less assertive personality that he was prepared to accept that advice to his and X’s detriment. Mr Cox’s commitment to X since late 2012, however, is in my view, unimpeached on the evidence.

Mr B

1. Compared to Ms Gaffney and Mr Cox, Mr B’s evidence was less impressive.  His inclination was to shore up his partner’s case, often at the expense of his own credibility.  His attempts to provide some mathematical slant on the financial impost on his business of his time of living in Victoria was unconvincing and of little probative assistance. Put simply, Mr B presented as a witness partisan to his fiancé’s case and therefore of little overall assistance to my forensic exercise.

2. Nevertheless, and perhaps by reason of his partisanship, Mr B was convincing in his commitment to his relationship with Ms Gaffney and clearly excited by the prospects of his forthcoming marriage and their own child.  Generally, I feel confident that he is a person who would adhere to his commitment (and to any Court orders) which required his contributions to maintaining and financing a relationship for X with his father should there be a relocation for the child to Brisbane.

3. In this sense he presented as a young man of high moral fibre, if not somewhat naïve and conservative in some of his values and perhaps best demonstrated by his lack of understanding of any difficulty in the evidence suggesting that he encouraged, or at least passively allowed, X to refer to him as “daddy”.

Ms D

1. Ms D is Mr B’s mother.  Her affidavit of 12 October 2015 was read into evidence without her being required for cross‑examination.  Not surprisingly, she was complimentary of her son and his dealings with his nieces and nephews. Equally not surprising, she deposes as to her willingness to support the mother and Mr B.

Ms N

1. The mother relied on an affidavit of Ms N affirmed 2 December 2015.  She is a close friend of the mother and they share (language omitted) as their first language.  She says that she is prepared to support the mother should she remain in Melbourne but, for practical purposes, only if the mother was to move to near (omitted) which is a suggestion on the mother’s case if she is required to remain in Melbourne. I note, however, the mother currently owns a property in (omitted). Ms N’s evidence was otherwise of little assistance to my exercise.

Dr J

1. Dr J is Ms Gaffney’s general practitioner. He provided a medical report dated 1 December 2015 on affidavit. He deposed to the effects on Ms Gaffney of an ongoing back condition which was relevant only to a festering dispute between the parents as to whether Ms Gaffney should and could have been assisting with changeovers for X’s time with the father.

Ms F and Ms P

1. The affidavits of the abovenamed were read into evidence without the deponents being required for cross‑examination. 

2. Ms F is the paternal grandmother.  Her affidavit is corroborative of the father’s evidence that X enjoys a close relationship with his extended family and that she is committed to assisting the father in his care of X.

3. At [15] of her affidavit, Ms F deposes:

   On 18 September 2015 when I collected X from changeover and we were in the car travelling home, X said:  “Mummy said something really bad, she said when I was little daddy wanted to kill me.”  I reassured him that was not true and he said, “Yes, I know it’s not true”. In addition, X also said, “Mummy and Mr B said I can go to the (omitted).  I’m going to miss daddy.”

4. Ms P is the father’s sister. She also deposes as to her brother’s skills as a parent and that X is a part of the extended family.

The Relevant Law

1. The jurisdiction of this Court comes from Part VII of the Family Law Act (1975) (as amended) (“the Act”) which provides powers in respect of children. As such, a Court cannot per se prevent the freedom of movement of an adult.  Such has been recognised and confirmed by the High Court which obliges a trial judge to consider a parent’s “right of freedom of movement.”[1] Importantly, however, the authorities emphasise that such freedom of movement of an adult is subject to the best interests of the child and insofar as it is compatible with a parent’s discharge of their obligations for that child. 

   [1] AMS & AIF (1999) CLR 160

2. It is trite to say that parenting cases involving an anticipated relocation of a child are amongst the more difficult and complex of matters coming before Family Courts. Whilst parenting matters often involve orders with only relatively discreet degrees of ambit, the issue of a relocation of a child will almost inevitably leave one or other of the parents aggrieved by the result.  If the relocation is permitted then the remaining parent will understandably suffer a significant sense of loss and angst in the practical maintaining of the relationship with the child.  The nature of that relationship between child and parent will be changed in its frequency and/or regularity and the normal parental enjoyment of involvement and spontaneity will be lost. Conversely, however, should a primary carer of a child not be permitted to relocate and their “right” of freedom of movement be thwarted then they will also be aggrieved.  They will be “forced” to live in a town, state or country contrary to their preference. Their own personal relationship ambitions may be tested or even lost. They may be deprived of the actual and emotional support from family and friends. Expectations and ambitions will be unfulfilled. Whatever the result, the relationship between the parents themselves will be tested by the result and likely to be untrusting, uncooperative and uncommunicative.

3. Against this background, however, it is important to understand that the Act itself does not deal with a specific category of “relocation case”.  Indeed, the Act is silent as to the concept of “relocation”. It follows that a relocation is neither expressly prohibited by law nor is there a presumption against it.  That is, a proposal for a parent to “relocate” is just one consideration in the overall task of the Court in determining the best interests of a child in respect of that child’s living and parenting relationships.  It is the best interests of the child that is the Court’s paramount consideration.[2]  It follows that a proposal to relocate a child is simply one factor to be considered among many others in arriving at orders which, on balance, are in the best interests of the child.

   [2] Section 60CA, Family Law Act 1975 (Cth)

4. The significant amendments to the Family Law Act in 2006 brought with them judicial and academic debate as to the impact of those amendments on the historical authorities dealing with matters of relocation of children. Significantly, the Full Court in Taylor & Barker[3] confirmed the pre‑amendment authority of the Court in Paskandy & Paskandy[4] being that there can be no dissection of a parenting matter into discrete issues of, firstly, which parent a child shall live with and then a separate issue as to whether the relocation should be permitted. The Court in Taylor & Barker observed at [60]:

   In our view, his Honour dealt with the relocation proposed in the context of his consideration of s 60CC and s 65DAA, at least insofar as it was possible to do so.  It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as is possible, in the context of the making of the necessary findings in relation to the s 60CC matters; however, as we will shortly explain, such a proposal now also intends to be considered in the context of s 65DAA.

   [3] (2007) FLC 93-345

   [4] (1999) FLC 92-878

5. Section 60CC(2) and (3) provide a number of statutory considerations to which a trial judge must reference the probative evidence and the parties’ proposals in order to arrive at orders which, on balance, attend to a child’s best interests.  Those considerations are divided into “primary” and “additional” considerations. Section 60CC(2)(b) provides that it is a primary consideration whether there be a need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  Fortunately, such issues do not arise in the matter now before me with the possible exception that the father alleges that the mother denigrates him to or in the presence of the child and that this may comprise psychological or emotional abuse within the broad definition in the Act.

6. The second primary consideration is that the Court should consider “the benefit to the child of having a meaningful relationship with both of the child’s parents”. Such a consideration obviously assumes the importance on the father’s case now before me and usually in matters involving a potential relocation of a child.  Importantly, however, and whilst this is a primary consideration for the Court, it is not a determinative one as the Full Court in Champness & Hanson[5] observed:

   The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make Orders most likely to ensure the children had a “meaningful relationship” with both parents.  This is an incorrect assumption.  The Court’s obligation is to make orders most likely to promote the child’s best interest.  In considering to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents.  Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.

   [5] [2009] FamCAFC 96

7. As referenced above, section 65DAA of the Act assumes some importance and particularly so in matters involving a potential relocation.  That section provides:

   65DAA(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

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

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

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

   65DAA(2) Subject to subsection (6), if:

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

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

   the court must:

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

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

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

8. Whilst the concept of “equal time” is self‑explanatory, section 65DAA(3) provides a definition of “substantial and significant time” as:

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

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

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

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

   (i) the child's daily routine; and

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

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

9. It is obvious, therefore, that a relocation of a child of any substantial distance from the remaining parent would effectively not permit regimes of either “equal time” or “substantial and significant time”.

10. The peculiarities of matters involving relocation have seen the High Court in MRR & GRR[6] emphasise the dual requirements of parenting orders to be both in the child’s interests and reasonably practicable. At [15] their Honours in the High Court observe:

    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, and not whether it is desirable that there be equal time spent by the child with each parent.  The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, (the trial judge) was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

    [6] (2010) 240 CLR 461

11. It is clear from a course of Full Court authority since the 2006 amendments that the historical principles in respect of matters involving an anticipated relocation remain valid.[7]  Those “principles” can be summarised thus:

    a)relocation matters are to be determined in accordance with the provisions of Part VII of the Act;

    b)the child’s best interest remains the paramount but no the sole consideration;

    c)a relocation proposal is to be evaluated within the context of the necessary findings in relation to a child’s best interests (section 60CC factors) and, where appropriate, section 65DAA (reasonably practicable);

    d)the court must consider the parties’ proposals, including the advantages and disadvantages of the proposed relocation, and may be required to formulate proposals itself in the best interests of the child;

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

    f)an applicant for relocation need not show “compelling reasons” in support of the proposed relocation but must produce probative evidence which permits a court, on balance, to find that a parenting order involving a relocation be in the child’s best interests; and

    g)the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement but that such a “right” must ultimately defer to the child’s best interests.

    [7] Sealey & Archer [2008] FamCAFC 142; Starr & Duggan [2009] FamCAFC 115; McCall & Clark (2009) FLC 93-405

Section 60CC Factors

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents.

1. This is the primary consideration for the court. It is not however, a determinative consideration and must be weighed and balanced against all other factors in the section.[8]

   [8] Champness & Hanson [2009] FamCAFC 96

2. It is clear on the evidence and obvious from any practical observation of X’s history that his primary attachment is to his mother who, after all, was his sole carer for the first two years of his life. X is just five years of age. He had no relationship whatsoever with his father for his first two years. The relationship has since been on a ‘time - with’ basis. A focus of the father’s argument against a relocation is that the relationship is a developing one and one which would be strained by reason of geography, practicality, and decrease in frequency should X relocate to Queensland with the mother. Mr Cox gleans strong support from Mr T, the family reporter, in this respect.

3. At [106] of the family report, Mr T observes:

   From observations during the preparation of this family report it is clear that X has a strong and developing attachment to his father and that Mr Cox enjoys a strong bond with X. In the writer’s opinion, these positive developments should not be put in jeopardy.

4. And at [109-110] Mr T notes:

   Ms Gaffney’s proposals for X’s time with his father following the relocation, on the writer’s calculations would seem to reduce the amount of overnight time X spends with over 12 months by about 50%.

   In this writer’s view it is respectfully suggested that this diminution of the time presently being devoted to the developing relationship between X and his father, and the paternal family, should not be acceptable as the price for Ms Gaffney’s relocation to Queensland.

5. Nevertheless, Mr T’s report, together with his evidence in court, also offered many indications of the strength and the bonding of the relationship between X and his father. At [91] of the report Mr Cox notes from his meeting alone with X:

   speaking briefly about the people that he ‘loves’, X is able to identify, “Daddy, Ms K, nonna, mummy and Mr B.”

6. And at [93]:

   “in a short discussion about his ‘family’ X told the writer it consists of, “aunty, Ms D, Mr B, daddy, Ms K, mummy, S and J”.

7. Further at [98] and without his father yet being involved in the interviews, X was noted:

   According to X “…seeing daddy is fun”, adding “I look forward to it.” The child spoke enthusiastically about helping his father in the garden, going fishing and added, excitedly, “He plays the game called (omitted) with me.”

   At no stage during the writer’s discussion with X did the child have anything negative to say about his father, or his father’s family; only that he enjoys the time he spends with them and looks forward to it.”

8. Mr T observed X’s reaction when Mr Cox was introduced to the interview and at [101] notes:

   It was interesting in the present context to note that, when X was invited to say goodbye to his father – they were due to meet again the following day to spend the weekend together – X backed-up across the width of the room and again took a running jump into his father’s arms, and briefly ought to delay his departure.”

9. This follows the observation at [81-82]:

   When X was introduced to his father the child was obviously delighted. Crossing the width of the room X took a running jump into his father’s arms and clung round Mr Cox’s neck. Mr Cox was seated at the time. After some moments, when he  disengaged himself from his father, X gave Ms K a warm hug.

   Mr and Ms K came to the practice well-prepared with snacks and drinks for X if required. Neither Mr nor Ms K needed any encouragement to interact with X; both getting down on the carpet and engaging the child in joyful play.

10. Consequently, and whilst Mr T describes the relationship between X and Mr Cox as “developing” there is no particularisation in his report or in his evidence in Court of that “developing” other than generalities of the child’s age and that the relationship has only been of three years duration. To the contrary, I am able to find from Mr T’s own evidence that the relationship between X and his father appears to be an easy, comfortable, affectionate, spontaneous and bonded one. Certainly, there is no evidence before me of any reluctance or hesitation for X in that relationship which might, in some circumstances, be an indicator of the relationship still being in its “developing” stages. Similarly, the evidence of Mr T is that X instantly recognised and reacted immediately and affectionately to his father. Likewise, the evidence is of easy transitions for X between his parents during Mr T’s interview process which, in my view, also indicates some high degree attachment to each of his parents. Still further, my findings as to X’s close and comfortable relationship with his father must be viewed within the context of the mother’s proposal for more frequent direct contact between father and son, and certainly much more frequently than that contemplated by Mr T.

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

1. Fortunately for X, there is no evidence before me of any family violence in its physical sense. The father and his mother raise an issue that might be interpreted as emotional or psychological violence. In summary they allege some remarks from X which may be interpreted as denigration of them by the mother to the child. The mother in her evidence was able to give plausible explanations for X’s alleged remarks. Although, I observed the mother to be of a forthright, uncompromising and somewhat cold personality type, I am unable, on the evidence before me and on the balance of probabilities, to make any findings that she has deliberately denigrated the father or his family to X.

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

1. X is just 5 years of age. Properly, his views as to his parenting and living arrangements are not elicited in the interview process. He would not be of sufficient maturity to be able to rationalise any such views. Again, however, his inclusive statements to Mr T as to his “family” are in my view of some significance in his understanding of the important people in his life including his father and his father’s family.

Section 60CC(3)(b) – the nature of the relationship of the child with (i) each of the child’s parents; and (ii) other persons (including any grandparents or other relative of the child).

1. Mr T’s report is enlightening as to the nature of X’s relationships with all the important people in his life. Significantly, and despite some well-founded criticism of Mr B assuming the title of “daddy”, X described Mr B to Mr T as noted at [88] of the report as:

   Asked who Mr B is X described his mother’s partner as “a  friend”

2. Overall, the evidence suggests that X has the benefit of a comfortable, loving and easy relationship with his mother and Mr B as well as Mr Cox and his extended family. Again, without any particulars in Mr T’s evidence, I have some difficulty in understanding the argument that the relationship between X and his father is a “developing one” save and except the taking into account of X’s age.

Section 60CC(3)(c) – The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long term issues in relation to the child; and (ii) to spend time with the child and (iii) to communicate with the child.

1. Mr Cox had no relationship with X for the child’s first two years. He blames poor legal advice from a family friend. Whether or not there is substance in this claim, the fact remains that the mother was the sole carer and provider for X for his first two years. Mr Cox now claims, apparently supported by the family reporter, that his relationship with X is a “developing one”. Although I am unconvinced of this claim and as mentioned above, this must be a factor of Mr Cox’s choice not to take any responsibility or any involvement in his son’s life for those formative years.

Section 60CC(3)(ca) - The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child.

1. The mother has taken on the primary responsibility for X’s financial support.  Mr Cox now contributes by way of child support assessment.  This was not always the case, however, and his commitment was further delayed by him questioning X’s paternity and requiring formal testing procedures.

Section 60CC(3)(d) - The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. This consideration is at the crux of the father’s case.  He says that X’s relocation to Queensland would diminish his actual and frequency of time with X.  He says that this will impact negatively on the development and maintenance of that relationship.

2. The mother argues that the relationship between X and his father is a strong, bonded and comfortable one.  Implicitly, she argues that the relationship between father and son would endure the relocation and that she would facilitate regular direct and media contact between the two.

3. It is irresistibly a truism that any relocation will cause an impact on a relationship between a child and the remaining parent.  Frequency of direct time will usually be reduced.  The opportunity for involvement in school and extracurricular activities will be made difficult, if not virtually impossible. The opportunity for spontaneous involvement and flexibility in arrangements will be lost. Nevertheless, it is well established that courts are to consider the quality of relationships between children and parents, rather than simply deal with quantitative aspects.

4. The question for the court, therefore, and within the ultimate consideration of X’s best interests, is whether and the extent to which X’s relationship with his father would be either negatively impacted or be able to endure the mother’s proposed relocation?  The child’s age and the current nature of his relationships are crucial considerations. I repeat that both the father and Mr T express concern as to the negative impact on what they say is a developing relationship. I repeat also, however, that any particularised manifestations of difficulties in that relationship are not immediately apparent from Mr T’s evidence, or indeed, from the evidence of the father.

5. To the contrary, both father and Mr T do particularise indicators of X being comfortable, familiar and bonded in his relationship with Mr Cox.  It is also relevant to consider that the mother’s proposal, if practical, would give some frequency of direct and indirect contact between the father and son.  Considerations such as any benefits of block times during school holidays are relevant when viewed against the current arrangement of shorter but more frequent periods of time between father and son.  Still further, Mr Cox has shown, at least in the last three years, a real and consistent commitment to his relationship with his son and as such it is likely that he would take up every reasonable opportunity, including travelling to Queensland, to spend time with X.

6. X also has relationships with extended family in Victoria. The evidence suggests that these relationships are also of some ease and strength for X and the same considerations as above would apply to these relationships.

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

1. Both the mother and Mr B commit actually and financially to maintaining X’s relationship with the father if X should be permitted to relocate with the mother to Queensland. Mr B runs his own business. Whilst his evidence in court was not always impressive as to its veracity in respect of his finances and it was apparent that he was keen to taper his evidence or be selective to suit a particular issue, I am satisfied that his business is ongoing and financially viable.  I am satisfied as to his commitment to both the mother and X and am satisfied, on the balance of probabilities, that the mother would therefore be able to finance and continue her proposals for X’s travel to Victoria should the court accede to her application.

2. The court must consider X’s age and whether the proposed travel arrangements are practical and/or onerous for him. Given that the mother’s proposals would involve some block periods of time for X with the father and allow X to settle into the father’s home, I do not consider the mother’s proposals to be either too onerous or impractical.

Section 60CC(3)(f) - The capacity of:  (i) each of the child’s parents; and (ii) 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. The implication of the mother’s case is that her own capacity to care for X may be negatively impacted on her being required to remain in Victoria. I stress, however, that no psychological evidence was adduced in this respect. Nevertheless, it is uncontroversial that the mother owns and lives in a one bedroom apartment.  She will soon be the parent of a five year old and an infant child. Mr B says that he must remain primarily resident in Queensland and so as to maintain his business. He says that a trial period of living in Melbourne proved to be financially unviable.

2. The evidence of Mr B is that his business in Queensland would suffer if he was to manage it from Melbourne and, indeed, he gave evidence of a trial period accordingly. Again, whilst Mr B’s evidence was at times embellished and/or selective, I am satisfied that that it is entirely reasonable for him to manage such a business directly and not from a distance. The suggestion made by Mr T that perhaps Mr B could commence a similar business in Victoria was not pursued in evidence with any vigour.

3. My observations of the mother were of a strong willed, capable and efficient young mother. I am satisfied, however, that her relationship with Mr B is a committed one and that it is reasonable for them to expect to pursue that relationship together.  It follows that, despite my observations of the mother’s personality, I accept that she would experience some difficulties in being, effectively, a single mother of two young children in Melbourne whilst her partner is based in Queensland.

4. Practical matters such as accommodation would also be of consideration.  It would not seem practical for the mother to remain in a one bedroom flat with two young children for any duration.

5. These are all considerations in respect of the competing proposals of the parties.  My observations and supported by the evidence, however, are that the mother is an able and devoted parent for X as evidenced by the father’s preparedness to delegate that role to her.  Equally, the evidence is that Mr Cox has the capacity to care for X physically, intellectually and emotionally within the regime that has been occurring. He does not covet any greater role.

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

1. The relevance here is X’s young age and his consequent ability to maintain a relationship with his father from Queensland if the mother is permitted to relocate.  X is five years of age.  He is in the process of socialisation in the sense that he will be attending school and establishing relationships with peers and other adults.  His relationship with his father is, of course, a prime one and one which the Act confirms as a primary consideration in the orders I am obliged to make.

Section 60CC(3)(h) - If the child is an Aboriginal child or Torres Strait Islander child.

1. Not relevant.

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

1. The father is criticised for his absolute lack of involvement in X’s life and support for the child’s first two years.  On reflection, and having the benefit of seeing and hearing Mr Cox give his evidence in the witness box, I accept his explanation that he was the naïve victim of some well-meant but extremely poor legal advice from a relative with some legal qualifications in not establishing and maintaining a relationship with X from the child’s birth.  My observations of Mr Cox are now of a devoted and loving father and certainly contrary to any suggestion that he may have absented himself from X for any selfish or malicious motives. Similarly, the commitment shown by the mother to X’s care and support cannot be impeached. 

2. The mother is subjected to criticism and speculation by the father that she would not foster and encourage X’s relationship with him if she be permitted to relocate X to Queensland. On all of the evidence before, I am not satisfied that this is the case.  Importantly and to the contrary, I can attribute X’s easy, close and successful relationship with his father, at least in a large part, to the mother’s encouragement and facilitating of that relationship.

3. The mother has been criticised for particular matters such as not contributing to the travel for changeovers. It was alleged that she has made derogatory statements to X in respect of the father. Some considerable time was taken up at the trial with exploration of these issues.  Similarly, there was a suggestion that the mother and Mr B encourage X to refer to Mr B as “Daddy”.  In fact, Mr B, in his naiveté, confirmed that this is the case. This was also put as a factor in support of an argument that the mother and/or Mr B would not encourage X’s relationship with his father should a relocation be permitted.

4. At [99] of the family report, Mr T notes:

   At no stage during the writer’s discussion with X did the child have anything negative to say about his father, or his father’s family;  only that he enjoys the time he spends with them and looks forward to it.

5. I think it to be significant that Ms Gaffney and Mr Cox did not, themselves, have any relationship in the normal sense. It is likely that they do not understand to any extent each of the other’s personality types and traits. It is clear that they are each suspicious of the other.  For example, the mother is critical of the father’s lack of involvement with X for his first two years but does not appear to accept the father’s naiveté and poor advice. Rather, she prefers to attribute some other sinister motive. Similarly, the father is suspicious and untrusting of the mother. His affidavit material and his evidence in court highlights indicators that the mother might not be supportive of his relationship with X.  However, he does not accept the contrary indicators as mentioned above. Put simply, it would be unlikely that a five year old, with no relationship whatsoever for his first two years, would now have such a comfortable and attached relationship with a non-primary parent unless there was some positive encouragement from the primary parent.

6. Whilst some criticism of Mr B and the mother might be justified in the use of the term “Daddy” in respect of Mr B, I also attribute this to the relative naiveté of both the mother and Mr B in the significance of such matters. The evidence in court did not disclose any mala fides in either of them. Rather, they simply appeared oblivious to the potential for any confusion for X in his understanding of his biological parentage.

7. I am satisfied that the mother and Mr B did legitimately trial a period of time of Mr B living in Melbourne and running his Queensland business in absentia and in order to assist X in maintaining a geographically close relationship with each of his parents.  I consider this another factor of the mother’s (and Mr B’s) willingness to facilitate X’s relationship with Mr Cox.

Section 60CC(3)(j) and (k) - Issues of family violence and family violence orders.

1. Not relevant, save and except as set out above.

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

1. Matters addressing the proposed relocation of the child in the context of parenting orders and the child’s best interests are prospective in nature.  Whilst a court will always make orders which it considers on balance to be in the child’s best interests, and that are reasonably practicable, and the Court would reasonably expect positive adherence to its orders, changes in circumstances of the child and/or either or both of the parents might reasonably be expected in relation to a five year old child.  Some of these considerations can be anticipated, such as the circumstances of the mother in this case in attempting to maintain her own personal relationship with Mr B if he is to live in Queensland and she is to live in Melbourne, or of Mr Cox maintaining his relationship with X over time if the relocation is permitted, and where the child would be expected to develop his own relationships and interests which potentially may conflict with his obligations to the parent. Similarly, the court must consider the impact on the mother’s parenting of X if the mother is required to remain in Melbourne and, on the evidence, would be effectively the sole parent of two very young children and, at this stage, living in a one bedroom apartment.  Any or all of these factors must be considered as to the likelihood of there being further litigation which ideally should be avoided for any child.

Findings and Considerations

1. On the balance of probabilities, I am satisfied that X has an established and meaningful relationship with each of his parents.  I am mindful of X’s young age and the fact that the duration of his relationship with his father is of only three years. Nevertheless, the indications from the family report and the evidence generally is that X’s relationship with his father is close, comfortable and successful.

2. Despite some reservations as to the mother’s somewhat austere personality type, together with similar reservations as to the naiveté of Mr B, I am satisfied on the balance of probabilities that should there be a relocation of X to Queensland then both the mother and Mr B would facilitate and encourage X’s relationship with the father.  I repeat that the observations of Mr T and the father himself as to the nature of X’s relationship with Mr Cox are indicative, in my view, of positive encouragement by the mother in that relationship and certainly contrary to any suggested course of discouragement or denigration.

3. Similarly, and despite Mr B’s attempts to taper his evidence in the best light of particular issues, I am satisfied that the mother and Mr B would be able to put their proposals into effect should a relocation be permitted.

4. I do not find any merit in any direct or implied criticism of the father in respect of his absence from X’s life for the child’s first two years.  I accept the father’s explanation as to his reliance on extremely poor legal advice and certainly his devotion to X over the last three years argues contrary to any selfish motivations at that time.  It follows that I am satisfied that Mr Cox would make all reasonable efforts to maintain a relationship with X, whatever the child’s circumstances.

5. The mother need not show compelling reasons in support of her proposed relocation of X to Queensland.  She must however, in my view, demonstrate reasons of such probity that address the child’s overall best interests. Ms Gaffney is, and has always been, the delegated primary carer of X. I am satisfied that she is in a committed relationship.  She is pregnant with Mr B’s child.  They intend to marry.  I am satisfied that they made a bona fide attempt at trialling Mr B living in Melbourne, albeit financially unsuccessfully.  Mr B operates his own business and would assume primary financial responsibility for his family unit, including Ms Gaffney and X.  I am therefore satisfied that the mother has demonstrated some objective and substantial reason for her intended relocation of X.

6. The father’s argument as to X remaining living in Melbourne also holds some real merit.  X is yet very young.  Mr T refers to his relationship with the father as a “developing one”, and by X remaining in Melbourne, Mr Cox would have easy involvement in X’s early years at school, his extracurricular activities and frequency of direct contact.  All of these are factors which could only enhance and solidify the relationship between child and parent. It follows therefore, that a relocation with his geographical considerations would negatively impact on these positive aspects of a relationship. X is in the process of socialisation but the use of some media to maintain his contact with his father might still be problematic for a child so young. I also find that the mother’s proposals for time between X and his father are more generous in frequency than understood by Mr T.

7. Mr Cox’s concerns as to there being any reasonable flexibility and facilitation of his relationship with X, should the child relocate, are understandable. The communication between these parties is not yet established on a trust basis.  They are suspicious and critical of each other. Experience suggests that a successful relocation of a child, in particular a young child, would be enhanced from a co-operative and communicative relationship between the parents. Certainly no such relationship currently exists between Mr Cox and Ms Gaffney.

1. The father’s partner and his extended family all have good and beneficial relationships with X. The geographical limitations of a relocation would inevitably impact to a degree on those relationships if only by frequency of direct contact. 

2. There are, however, also positives on the mother’s proposal to relocate X to Queensland.  Firstly, the mother is and has always been the unchallenged and delegated primary parent of X. She is an adult and her own “right” of movement (subject to X’s overall best interests) should not be underestimated. This must be seen within the context of her personal circumstances.  I have found that she is in a committed relationship and that her partner lives and works in Queensland. She is soon to give birth to her partner’s child and the attendant difficulties of her remaining in Melbourne effectively as a sole primary parent of two young children should be considered and despite my observations and findings as to the stoicism of Ms Gaffney. It is also not unreasonable to speculate that the current suspicious, uncooperative and uncommunicative relationship between these parents might not be enhanced or improved by any order, on the father’s application, that require the mother to live apart from her partner and without her partner’s day-to-day support.

3. Overall, I am satisfied that Mr B operates a financially successful business and would be able to provide financial support for the family unit involving Ms Gaffney, X and their own soon to be born child.  Whilst not diminishing the primary importance of his relationship with his father, the inclusion of X in a supportive family unit is significant when viewed against the likely circumstances of the father’s proposal, which would have the mother living in Melbourne away from her own primary emotional support.

4. Although the mother has lived in Melbourne now for some time, her support network in Victoria is not substantial.  Unfortunately, the poor communicative and trusting relationship between the parents does not suggest that the mother could or would easily call upon and rely upon the father himself as her support.

5. Whilst the mother’s proposal inevitably carries with it a decrease in the frequency of time for X with his father, there may be a benefit on that proposal of block periods of time for X with his father which would allow the child to settle into his father’s home.  The Full Court has consistently observed that it is the quality of relationships between children and parents which is relevant rather than simply a calculation based on quantity of days or hours. Further, and although X is obviously still a young child, the mother’s proposals for direct time between X and the father can be supplemented by the available media such as FaceTime and Skype. 

6. Many matters involving the potential relocation of children leave the considerations as to those children’s best interests finely balanced, this is particularly so with this matter. There are both positive and negative considerations on both of the parents’ proposals. After some consideration however, and on the balance of probabilities, I am satisfied that X’s best interests are served by his mother being permitted to relocate with him to Queensland and that orders substantially in the terms of the mother’s application would be reasonably practicable. It is inherent in such a finding that I find that the father’s proposal that X spend “substantial and significant time” with him within the definition in the Family Law Act is not in X’s best interests. In making this finding, however, I rely to a large degree on my findings above as to the nature of the relationship between X and his father, which I find to be an established and bonded one and in so doing I note I place less weight on the opinion of the family reporter being that the relationship is a “developing one”. I also place weight on my findings that the mother and Mr B will, for practical purposes, be able to put their proposal into effect and will both facilitate and encourage X’s relationship with his father. Further, and whilst not in any way neglecting a consideration of the inevitable change in the nature of the relationship between X and his father by reason of a relocation, I also place weight on the fact of the mother’s new relationship, her expectant child, and the likely negative impact on her of the father’s proposal together with any vicarious impact on X.

7. I am also asked to consider the mother’s application to remove the airport watchlist order. There was considerable evidence before me as to the mother’s lack of urgency in respect of the obtaining of a new passport for X and the attending to his surname change. Whilst I am unable to make findings of mala fides against the mother in these respects, they do evidence the apparent entrenched mistrust between the parents. Whilst I am mindful of the mother’s return from previous overseas travel and her commitment to Australia, she also has connections to (country omitted). I also take into account the inconvenience of making application to this Court on each occasion the mother might wish to travel with X. Nevertheless, the mother’s background and circumstantial connections with (country omitted) together with the lack of mutual trust between the parents lead me to prefer that the airport watch list remain and I will order that it do so for two years. I trust, however, that time and improved trust will cause such an order to be unnecessary and I am pleased to have been provided with consent orders during the course of my consideration of these reasons agreeing for X to travel to (country omitted) for the mother’s forthcoming wedding. 

8. The mother’s application proposes a specific regime of time for X with the father which involves substantial financial obligations on the mother and Mr B. I propose to make orders for X’s time with Mr Cox in Melbourne which maximise the opportunities in school holidays whilst incorporating the mother’s proposal for additional periods to punctuate the gaps between school holidays. I am comfortable that such orders will address to a degree Mr T’s concerns as to intervals in direct time and reduction of frequency.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 8 April 2016