Galluzzo and Balducci - [2011] FMCAfam 733

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GALLUZZO & BALDUCCI

[2011] FMCAfam 733

FAMILY LAW – Parenting – mother seeks to return to her home town of Perth with the five year old child of the relationship – father opposes relocation and seeks that the current shared care arrangement continue in Melbourne – mother suffering from anxiety and depression arising from her inability to return to Perth – found to be in the child’s best interests to relocate to live with his mother in Perth and spend regular time with his father.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

MRR v GR [2010] HCA 4

Applicant:

MR GALLUZZO

Respondent:

MS BALDUCCI

File Number:

MLC 8975 of 2010

Judgment of:

Bender FM

Hearing dates:

18, 19 & 20 July 2011

Date of Last Submission:

20 July 2011

Delivered at:

Melbourne

Delivered on:

22 July 2011

REPRESENTATION

Counsel for the Applicant:

Ms Tulloch

Solicitors for the Applicant:

Kennedy Guy

Counsel for the Respondent:

Ms Carter

Solicitors for the Respondent:

Hogg & Reid

ORDERS

The parties shall have equal shared parental responsibility for the child of the relationship [X] born [in] 2006 (“[X]”).
Until Monday 19 December 2011, [X] shall live with each of the parties as follows:
(a)during the first and fourth weeks of each four week cycle, with the mother from 9.00 am on Tuesday until 9.00 am on Friday and with the father from 9.00 am on Friday until 9.00 am on Tuesday;
(b)during the second week of each four week cycle, with the mother from 9.00 am on Tuesday until 9.00 am on Friday and with the father from 9.00 am on Friday until 9.00 am on Monday;
(c)during the third week of each four week cycle, with the mother from 9.00 am on Monday until 9.00 am Tuesday, with the father from 9.00 am on Tuesday until 9.00 am on Friday and with the mother from 9.00 am Friday until 9.00 am Tuesday; or
(d)for such other days as may be agreed between the parties to enable [X] to spend one weekend in each four with the mother.
From Monday 19 December 2011 until the first day of school in 2012, [X] shall live with each of the parties as follows:
(a)with the mother from 9.00 am on Monday 19 December 2011 until 6.00 pm on Monday 26 December 2011;
(b)with the father from 6.00 pm on Monday 26 December 2011 until 6.00pm on Monday 2 January 2012; and
(c)thereafter on a week about basis with times to be agreed between the parties subject to their work commitments.
Until [X] commences school in 2012, the times that [X] is to live with each of the parents as set out above shall be varied to accommodate the mother’s work roster as follows:
(a)the mother shall email the father a copy of her work roster forthwith upon it being provided to her and nominate any changes to the above schedule as may be required by her for the period of the said roster;
(b)within 48 hours of receiving the said roster the father shall confirm via email his agreement to the mother’s proposed changes or advise her as to any further variations that he might require; and
(c)the parties shall work together to ensure that as far as may be possible [X]’s time shall be shared equally between them.
From 19 December 2011, the mother shall be permitted to relocate [X]’s residence to Perth, Western Australia.
Both parents are permitted to attend with [X] on his first day of school in 2012 (if they are able to do so).
From the first day of school in 2012 and thereafter, [X] shall live with his mother.
From the first day of school in 2012 and thereafter, [X] shall spend time with his father in Melbourne as follows:
(a)during school terms, on two weekends each term, as agreed, with such time to coincide with a Western Australian long weekend whenever possible (and it is noted that the long weekends in Western Australia are Labour Day, in March, Anzac Day in April, Foundation Day in June and Queens Birthday in October);
(b)during the school term holidays in 2012 for seven consecutive nights at times agreed, and from 2013 and thereafter for
10 consecutive nights at times agreed;
(c)for one half of each of the summer school holidays at times to be agreed between the parties as follows:
(i)until [X] reaches the age of seven years time shall be spent on a week about basis;
(ii)
in even numbered years the father’s time shall include the period from 6.00 pm on 23 December until 6.00 pm on

26 December so that [X] is able to spend Christmas in Melbourne;
(iii)
in odd numbered years the mother’s time shall include the period from 6.00 pm on 23 December until 6.00 pm on

26 December so that [X] is able to spend Christmas in Perth;
(iv)once [X] reaches the age of seven years:
A.In the 2013/2014 summer holidays and in each alternate year thereafter [X] shall spend the first half with the mother and the second half with the father; and
B.In the 2014/2015 summer holidays and in each alternate year thereafter [X] shall spend the first half with the father and the second half with the mother;
(v)if it is possible for [X] to see the parent that he is not living with on Christmas Eve, Christmas Day or Boxing Day, the parents shall facilitate such time;
(d)at such times in Perth as may be agreed between the parties with the father to give the mother not less than seven days notice of his intention to travel to Perth; and
(e)for such other and further periods as may be agreed between the parties from time to time.
For the purposes of [X] spending time with the father in Melbourne and the father travelling to Perth to see [X]:
(a)the parties shall each pay one half of the cost of [X]’s air travel;
(b)until [X] reaches the age of seven years he shall be accompanied on any flight by either of them or another agreed adult and further the mother shall pay the travel costs for herself (or other agreed adult) from Perth to Melbourne return and the father shall pay the travel costs for himself (or other agreed adult) from Melbourne to Perth return;
(c)the mother shall nominate the father and [X] and keep each of them nominated as persons entitled to receive the benefit of her [omitted] travel discount with [airline omitted].
The mother shall facilitate communication between [X] and the father via telephone, Skype and email at any reasonable time.
The parties shall keep each other informed at all times of their current residential address, home telephone number, mobile telephone number and email address.
The parties shall communicate about any issue in relation to [X] via email or in the event of an emergency by telephone or text message.
The parties shall each forthwith do all such acts and things necessary to enrol [X] to commence school in 2012 at [N] Primary School or such other school as may be agreed between them in the area in which the mother proposes to reside in Perth.
The parties shall each do all such acts and things as may be required and sign all such documents as may be necessary to:
(a)have each of them listed as a contact person on [X]’s school enrolment;
(b)ensure that each of them receive from the [X]’s school all notices, school reports, school photographs and other material usually provided to parents (at their own expense); and
(c)keep the other informed at all times as to any medical issue or treatment affecting [X] including the names of any treating doctor or other health professional and authorise such treating doctor or health professional to communicate with each of them.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 8975 of 2010

MR GALLUZZO

Applicant

And

MS BALDUCCI

Respondent

REASONS FOR JUDGMENT

Introduction

This matter relates to whether the mother can return to her home town of Perth with the parties’ son [X] born [in] 2006 (“[X]”) or will be required to remain in Melbourne where the parties have resided since [X]’s birth.
The father seeks orders that the mother be restrained from removing [X] from the Melbourne Metropolitan area. The mother is seeking that she and [X] be permitted to relocate to Perth.
The matter proceeded on the basis that if not permitted to relocate to Perth, the mother would remain living in Melbourne with [X].
To their credit, the parties were able to agree as to [X]’s living arrangements, whatever the outcome of this matter. An agreed Minute was provided to the court at the close of the matter that set out the parties’ agreed arrangements for [X] if he lived in Melbourne or if he lived in Perth.
Orders will be made reflecting the parties’ agreed arrangement for the city it is determined [X] is to be based in.

Background

The father was born [in] 1971 and is 39 years of age. He is a self-employed [omitted]. He has not re-partnered.
The mother was born [in] 1970 and is 41 years of age. She is a [occupation omitted]. She has re-partnered and is intending to marry Mr W, currently a Perth resident, in 2012.
The mother moved to Melbourne from Perth in January 2003 to pursue employment opportunities. She and the father met in 2003 and later commenced their romantic relationship, moving in together in May 2005.
The parties’ son [X] was born [in] 2006.
The mother took 10 months maternity leave after [X] was born and then returned to work with [omitted] on a part-time basis, working eight days per month. She would usually work on weekends to enable the father to care for [X] when he was not working.
It was common ground that the parties had discussed and agreed they would move to live in Perth with [X]. It was the mother’s evidence they had agreed this would occur when [X] turned two years of age. It was the father’s evidence that there was no specific timing for this move and that after the parties separated in April 2008, he believed any agreement to move to Perth was no longer valid given the breakdown of the parental relationship.
The relationship breakdown was in part caused by the unhappiness between the parties about the relocation to Perth and the father’s increasing reluctance to commit to the move. The mother became more and more distressed and frustrated, feeling trapped and isolated from her very close family and friends in Perth.
After the parties separated, despite any interpersonal issues, the parties were able to put in place a very cooperative parenting arrangement. The mother continues to work part-time with [omitted], mostly on weekends. Each month she receives a roster which sets out her working commitments for the next 28 days. The parties would exchange that roster and [X] is cared for by the father when the mother is working. Because he is self-employed, the father is able to adjust his work commitments such that he fits in around the mother’s roster. The parties also place [X] in child care and kindergarten during the week.
In 2007, the mother was diagnosed with depression arising from her increasing feelings of isolation in Melbourne. She was prescribed Zoloft and continues to take that medication to this day. In 2010, the mother was referred by her treating General Practitioner to Dr L, psychiatrist, because of her ongoing anxiety and depression.

Dr L has diagnosed the mother as suffering from major depressive disorder with comorbid anxiety, which he believes will resolve if the mother is permitted to relocate to Perth.
It is the mother’s evidence, which is accepted, that since separation she has continuously broached the possibility of relocating back to Perth with [X] with the father. She has suggested he too could move to Perth so that the current shared care arrangement could continue.
Between separation and May 2010, it appears the parties remained somewhat emotionally enmeshed, with occasional intimacy and suggestions of a possible rekindling of their relationship. In May 2010, the father reneged on an agreement to join the mother, [X] and the mother’s family in Bali to celebrate her 40^th birthday. This seems to mark the end of the adult enmeshment, though the parties continued to cooperatively care for [X].
In August 2010, [company omitted] opened an operating base in Perth, opening employment opportunities for the mother in that city. It is her evidence, which is accepted, that she discussed this with the father and again sought his agreement to a move to Perth.
The mother then sought legal advice about her proposal to relocate to Perth with [X], having decided this was what she wanted and needed to do. She was advised to write to the father telling him of her decision.
As is the current way of the modern world, the mother “discussed” this decision on her Facebook page. On 10 September 2010, the father saw the entry on the mother’s Facebook page as to her decision to return to Perth. On 15 September 2010, the mother hand delivered a letter to the father advising of her decision to seek to return to Perth with [X] and seeking the father’s consent.
On 24 September 2010, the father filed an Initiating Application seeking urgent interim orders restraining the mother from removing [X] from the Melbourne Metropolitan area.
On 4 October 2010, the parties agreed to an interim order restraining the mother from removing [X] from living in the Melbourne Metropolitan area.
In December 2010, the parties attended mediation to try and resolve matters between themselves in relation to [X]’s future living arrangements. Whilst unable to agree on the relocation issue, they entered into a parenting plan as to [X]’s interim living arrangements in Melbourne which provided that [X] live with his father from Friday to Monday and with his mother from Tuesday to Friday.
Since the parenting plan was made, the parties have in reality continued to have a flexible arrangement whereby [X] has moved easily between his parents in accordance with the mother’s work commitments.
In November 2010, the mother commenced a romantic relationship with Mr W, a life long family friend. Both the mother and Mr W see theirs as a committed relationship and hope to marry in 2012. Mr W, who is Perth based, has a nine year old son, [Y], who is in his primary care. [Y]’s mother lives in Launceston and he spends time with her in each of the school holidays. All of Mr W’s family live in Perth.
If the mother is able to relocate to Perth, it was her evidence, supported by documentation from her employer [omitted], that she will be able to obtain a position with them based in Perth.
If the mother is required to remain in Melbourne, she has indicated that she will move to live in or around [suburb omitted] before the year’s end to be close to [suburb omitted] and reduce travel time to and from work. As [X] starts school next year, it is the mother’s evidence this will allow her to better manage her parenting and work commitments. The father does not oppose such a move and indicated he too would move to that area to enable the ongoing cooperative parenting arrangements to continue.

The Evidence

The father’s evidence

The father

It is the father’s proposal that the mother and [X] remain living in Melbourne. Should the father be successful in his application, [X]’s living arrangements have been agreed between the parties. This agreement provides for a flexible shared care arrangement that will continue to accommodate the mother’s work commitments.
It is the father’s evidence that he and [X] have a close and loving relationship and that he has, since [X]’s birth, shared with the mother the parental responsibility for their son.
It is the father’s evidence that when the mother returned to part-time employment with [omitted], they put in place arrangements whereby she predominantly worked on weekends so that he was available to care for [X] around his own working commitments.
It was the father’s evidence that upon separation, the parties were able to continue to work cooperatively together so that [X] was in his care when the mother worked and in the mother’s care when she was not working and he was at work.
The father explained that the arrangement was that the mother would receive a roster that set out her working commitments for the next

28 days and that the parties would reach agreement as between themselves in relation to [X]’s care arrangements for that next 28 day period. It was the father’s evidence that this generally involved the mother working weekends, though there could be occasions when she would be required to work during the week as well. It was his evidence that because he is self-employed, he had and has a high degree of flexibility which enables him to adjust his working commitments to accommodate the mother’s more rigid working commitments.
The father conceded that from his first meeting with the mother in 2003, she had indicated that she ultimately wished to return to Perth and that whilst in their relationship, there was an agreement in principle that at some time after [X]’s birth they would move as a family to Perth. It was the father’s evidence that no specific time was set for such a move and that with the breakdown of the relationship, he was of the view that any agreement reached between them whilst they were in an intact relationship was no longer relevant.
The father further conceded that one of the factors contributing to the breakdown of the relationship was his reluctance to move to Perth.
On this issue, he also confirmed that the mother had raised with him, on many occasions since their separation, her desire to return to Perth with [X] but that he was not agreeable to such an arrangement taking place as he wished to remain living in Melbourne.
It was the father’s evidence that he is strongly opposed to [X] relocating to Perth with the mother as it will make it impossible for the current shared care arrangements to continue and will severely impact on his relationship with [X], [X]’s relationship with him and his capacity to be involved in [X]’s life on a day to day basis.
Whilst agreeing that the mother is a:
“very good mother at times”
the father was very critical of what he described as the mother’s:
“need to socialise”
and what he perceived to be the mother putting her own interests ahead of those of [X].
In relation to these criticisms, it was the father’s evidence that the mother would put her social life ahead of caring for [X] and cited examples of SMS messages sent to him as well as requests for him to care for [X] so that she could go out with friends.
The father also raised concerns in relation to excessive alcohol consumption by the mother, on occasion, when socialising.
When cross-examined, the father agreed that he had no concerns that [X] would be at any risk when being cared for by his mother and that his proposal for a shared care regime confirmed his belief that the mother properly and adequately cared for [X].
The father gave evidence that he has a good relationship with his father and sister who live in Victoria. He agreed that as they don’t live in Melbourne they don’t get to spend a lot of time with each other but that he and [X] have visited his father in [omitted] two or three times this year and his father has come to visit him and [X] in Melbourne on two or three occasions this year.
In relation to his sister, Ms A, who lives in [omitted], the father indicated that a similar level of interaction has taken place and that he has been able to ask Ms A to assist in babysitting [X] on the occasional Saturday when he has been required to work whilst [X] was in his care.
The father conceded that [X] does have a good relationship with the maternal family in Western Australia, that he has facilitated [X] and the mother spending time in Perth this year on at least five occasions and that he would continue to support that relationship into the future.

The father was cross-examined as to the possibility of he moving to live in Perth in the event that the mother was successful in her application to relocate to Perth with [X]. It was the father’s evidence that whilst he might consider such a move, he did not wish to do so. He conceded that his skill-base was such that he would most probably be able to obtain employment in Western Australia but had made no enquiries in that regard.

Mr G

Mr G is the paternal grandfather. An affidavit was filed by the paternal grandfather in support of his son, sworn on 12 July 2011. The paternal grandfather also gave viva voce evidence at the final hearing of this matter.
The paternal grandfather confirmed that he lives in [omitted], which is about two and a half hours drive from Melbourne, where he is

self-employed on a full-time basis as a [omitted].
The paternal grandfather confirmed that he has never cared for [X] by himself overnight, but that [X] has visited his home with the father as well as the paternal grandfather coming up to Melbourne two or three times this year to visit his son and grandson.
The paternal grandfather confirmed that if [X] were to move to Perth with his mother and come back to spend time with his father, he would ensure that he took every opportunity to spend time with [X] when he was in Melbourne.

Ms A

Ms A is the father’s sister and [X]’s paternal aunt. The paternal aunt filed an affidavit in support of her brother sworn on 5 July 2011 and gave viva voce evidence at the final hearing of this matter.
The paternal aunt confirmed that she is currently studying a Bachelor of [omitted] at university in [omitted] and lives approximately one and a half hours drive from the father’s home.
It was her evidence that, at her brother’s request, she had come to Melbourne on occasion to babysit [X] on a Saturday because of the father’s work commitments and that she will continue to be happy to provide that level of support for her brother.
It was the paternal aunt’s evidence that upon completion of her degree at the end of 2012, she and her husband are hoping that she will obtain a position in a Melbourne-based [workplace] which will enable them to move back to Melbourne.

The mother’s evidence

The mother

It is the mother’s proposal that she and [X] be permitted to relocate to live in Perth and that [X] spend time with his father in accordance with the agreed proposals of the parties, which provide for [X] to spend time with his father for two weekends each term, during the school holidays and by electronic means.
It is the mother’s evidence that her move from Perth to Melbourne in 2003 was never intended to be a permanent one and that it has always been her intention to return to live permanently in Perth. It is her evidence that she told the father this, the first time she met him in 2003 when they were housemates, and that this has consistently been her position ever since.
It was the mother’s evidence that after the parties commenced a relationship and following the birth of [X], they reached an agreement that they would relocate as a family to Perth to live when [X] turned two years of age.
It was the mother’s evidence that it was the father’s increasing ambiguity about committing to this agreement that was the major cause for the breakdown of their relationship.
It was the mother’s evidence that following separation she has consistently tried to discuss with the father the possibility of she and [X] returning to live in Perth, as well as suggesting that the father also relocate to Perth to enable him to continue to have the same level of involvement in their son’s life.
The mother agreed that since the parties separated, they had put in place a cooperative shared care arrangement in relation to [X]. It was her evidence that the father would care for [X] approximately two or three nights each week and that he would be in her care for the balance of that time.
The mother described the father as a good parent and referred to him as:
“a great father.”
The mother’s only criticism of the father was her concern that he and [X] do not participate in external activities like visits to the zoo, Wiggles concerts, taking him to the car show or swimming or other like outside activities. The mother was concerned that up until two or three months ago, the father was not taking [X] to any birthday parties to which he had been invited and seemed to prefer for he and [X] to have interactions at home or at the homes of family and friends.
It was the mother’s evidence that in August 2010 when she was notified by her employer that [omitted] was creating a base in Perth and opening up employment opportunities there, she discussed with the father the possibility of applying for such a position and moving to Perth with [X].
It was the mother’s evidence that she made a decision that she did want to return to Perth in or around this time, sought legal advice and, acting on that advice, wrote a letter to the father setting out her decision that she would seek to return to Perth, which she hand delivered to the father on 15 September 2010. She confirmed that she had been discussing these matters on Facebook, but had not realised that the father was looking at her Facebook entries.
It is the mother’s evidence that her mother and sisters all live in Western Australia, together with her five nephews and nieces, all of whom are around [X]’s age. It was her evidence that she and her family are very close and they spend a lot of time with each other.
It is also the mother’s evidence that she has maintained a very close group of friends in Perth, and that she continues those friendships to this day.
By contrast, it was the mother’s evidence that she does not have and has not been able to develop the same friendship group in Melbourne. It was her evidence that she did have three close friends in Melbourne, but that all of them are now living either interstate or overseas.
It was the mother’s evidence that in November 2010, a romantic relationship commenced between herself and Mr W. Mr W has been a lifetime family friend. It was her evidence that this relationship has deepened and developed, such that she and Mr W see a future together and are planning to become engaged and to marry sometime in 2012.
Mr W lives in Perth in his own home with his nine year old son, [Y]. [Y]’s mother lives in Launceston and [Y] spends time with her during each of the Western Australian school holidays.
Mr W is employed as a [omitted] within the transport industry.
The mother indicated that she and Mr W had discussed what would happen in the event that she was not able to relocate and that he had indicated he would consider moving to Melbourne to live with her, but that it would cause enormous disruption to him, to [Y] and to his family as they too are all based in Western Australia.
It was the mother’s evidence that she has made enquiries of her employer and was in fact offered a position in Perth commencing in August 2011. She indicated that she had declined that position because of these current court proceedings. It was the mother’s evidence that there continues to be employment opportunities in Perth and that she has been advised by her manager that if allowed to move to Perth she would be able to obtain a position there.
It was the mother’s evidence that as an employee of [omitted], she is able to obtain discount airfares for persons that she nominates to be eligible for her [omitted] discount. It was her evidence that she can nominate herself, one further adult and as many children as she chooses to be part of the first group or “group one” of her [omitted] discount. The persons nominated in group one are eligible for an unlimited amount of discounted travel in any year.
It was the mother’s evidence that if she were to relocate to Perth, she would agree to an order that she place the father in group one of her [omitted] discount to enable him to travel cheaply to and from Perth. At this time, if included in group one, a return airfare from Melbourne to Perth would cost $152.00.
It was the mother’s evidence that in 2007, because of the father’s refusal to move back to Perth, she developed depression and anxiety. It was her evidence that she consulted her General Practitioner, who confirmed a diagnosis of depression and prescribed Zoloft. It was the mother’s evidence that in September 2010, her General Practitioner referred her to Dr L, psychiatrist, for further treatment of her depression and anxiety and that she continues to see Dr L to this day.
It was the mother’s evidence that Dr L had confirmed that she was suffering from reactive depression arising from her increasing sense of isolation and unhappiness in being required to live in Melbourne and that her condition would ameliorate if she was able to move to Perth.
It was put to the mother during cross-examination, that even if the court were agreeable to she relocating to Perth with [X], it would be in his best interests that such a move not take place until the end of the year so that he could finish his four year old kindergarten and continue to spend equal time with his father. The mother agreed that this would be in [X]’s best interests and indicated a willingness to delay a departure to Perth until the end of 2011, if allowed to relocate.

Ms B

Ms B is the mother’s sister and [X]’s maternal aunt. She filed an affidavit in support of the mother sworn on 29 June 2011 and gave viva voce evidence by telephone at the final hearing of this matter from Perth.
It was the maternal aunt’s evidence that [X] has a terrific relationship with his Perth-based cousins and that this had developed as a result of the many visits that he had made with his mother to Perth.
The maternal aunt indicated that her sister had always spoken positively of Mr Galluzzo in his role as [X]’s father and agreed that it was vitally important for [X] to have as close a relationship with his father as he did with his mother.
It was her evidence that it was imperative that [X] have a good relationship with all of his family, both maternal and paternal.
The maternal aunt deposed in her affidavit that she was more than happy for the father to stay with her family if he were to come across from Melbourne to visit [X] in Perth, and that she would do all within her power to make him feel comfortable and to afford he and [X] time alone when he was visiting. She conceded that the father might find that difficult but was very clear that the invitation was there and that, with time, their relationship could develop and be a positive one as well.

Ms C

Ms C is the maternal grandmother. She filed an affidavit in support of the mother sworn on 25 June 2011 and was in Melbourne for the final hearing. The maternal grandmother gave viva voce evidence on her daughter’s behalf.
The maternal grandmother confirmed that she has a close and loving relationship with [X], which had developed over his many visits to Perth, as well as her regular visits to Melbourne to visit her daughter and grandson.
The maternal grandmother confirmed that [X] has a positive and good relationship with his father and that her daughter speaks positively of the father in that role.
The maternal grandmother also confirmed that she would be open to the father staying with her if he were to travel over to Perth to spend time with [X], though acknowledged he might find that somewhat uncomfortable.

Mr W

Mr W is the mother’s partner. He filed an affidavit in support of the mother sworn on 19 May 2011 and travelled to Melbourne to give viva voce evidence at the final hearing of the matter.
Mr W confirmed that he and the mother have known each other all their lives and that a romantic relationship developed in November 2010. He confirmed that it is a committed relationship and that they were planning to become engaged and to marry in 2012.
It was Mr W’s evidence that he lives in Perth with his son [Y], aged nine, that [Y]’s mother lives in Launceston and that [Y] sees her during each of the Western Australian school holidays.
Mr W indicated that he is employed in the transport industry in Western Australia. Mr W confirmed that he owns his own home in Perth and that if the mother and [X] are allowed to relocate to Perth they would live with him in his home.
It was Mr W’s evidence that his mother and siblings live in Perth and that [Y] is cared for by his mother on a regular basis, as well as interacting with his cousins in Western Australia.
Because of the longstanding friendship between his family and the mother’s family, Mr W also has good relationships with the mother’s extended family as she does with his.
Mr W was cross-examined in relation to what he would do in the event that the mother and [X] were not able to relocate to Perth. It was his evidence that he and [Y] would move to Melbourne to live with the mother and [X], though this was not his preferred option. Mr W indicated that whilst he had not made any enquiries in relation to employment opportunities, his current employer had offices in Melbourne, and that he would make enquiries as to whether he would be able to transfer to their Melbourne offices.
Mr W expressed real concerns about the upheaval a move to Melbourne would cause [Y], as he would have to move from his school, his friends, his community and the father’s family with whom he spends regular time.
It was Mr W’s evidence that he and [X] have a good relationship, as do [X] and [Y].

Dr L

Dr L is the mother’s treating psychiatrist.
Dr L swore an affidavit on 20 May 2011, to which he annexed his Report dated 18 May 2011. Dr L also gave viva voce evidence at the final hearing of this matter.
At page 2 of his Report, Dr L, in relation to the mother’s mental health issues, reported as follows:
“The diagnosis is that of Major Depressive Disorder (DSM-IV 296.3) with comorbid anxiety.”
In the concluding two paragraphs of his Report, Dr L stated as follows:
“I have found Ms Balducci to be a competent, well meaning and decent woman, and one who would ultimately handle any outcome less favourable than the one she would like to see. However, it is quite clear to me, that if Ms Balducci is not given custody of the child in Perth, and has to continue with the

four-way juggling of her work timetable, the frequent

city-hopping, her new relationship, and access to her son, she would be at risk of continuing depression, with adverse consequences for [X].
In my view, it is imperative that Ms Balducci be permitted to relocate to Perth with the child, as she had formerly been led to believe she would be allowed to do. I believe that the child’s best interests would be served by living in Perth, by being looked after by his mother and her extended family, and enjoying periods with his father at appropriate intervals in Victoria. (Or better yet, if the father so wishes, in Perth.) Any other arrangement will, I believe, have a deleterious effect on the child.”
It was Dr L’s viva voce evidence that he understood the current living arrangements for [X] was that he spent roughly equal time with each of his parents and that, somewhat unusually from his experience, the mother spoke very positively of Mr Galluzzo in his role as [X]’s father.
Whilst Dr L indicated he believed that, if required to remain in Melbourne, the mother would recover from her depression and anxiety to a certain degree, she would not recover as well as if she was based in Perth.
Dr L spoke of the mother’s sense of betrayal and loss from the father’s change of mind to them relocating to Perth and expressed the view that an inability to relocate to Perth would be a serious psychological blow to her and that she would retain that sense of hurt and betrayal for some considerable time.
Dr L expressed the view that he believed [X] would be best served by living with the mother in Perth, where she had the support of her extended family and would therefore be in a position to provide a better quality of care and be a better parent to [X] as her anxiety and depression would resolve, and her sense of betrayal and anger would dissipate.

Ms S

Ms S is a psychologist and family consultant who prepared a Family Report in this matter dated 13 June 2011, which was placed before the court by way of her affidavit sworn on 14 July 2011. Ms S also gave viva voce evidence at the final hearing of this matter.
Ms S did not make any recommendations in relation to the primary issue before this court, being the mother’s proposed relocation, but rather discussed the pros and cons for both the parties and [X] that arise from this dilemma.
Ms S, in paragraph 18 of her Report, referred to [X] as a tall, slender boy who presented well and cleanly and was comfortable in his parents’ company. In her viva voce evidence, Ms S described [X] as a beautiful little boy who was clearly loved by and who loves both his parents. Ms S observed [X] to be a credit to both parties and indicative of a young lad who had received a very good level of parenting.
Under the heading “Evaluation” at page 10 of her Report in paragraph 22, Ms S stated as follows:
22.[X] has a good, close and strong relationship with both parents. His presentation on the day confirms that his parents are important to him and he is comfortable and happy with each of them. It is to the parents’ credit that he is able to maintain such a positive and easy relationship with both…
In paragraph 23 of her Report, Ms S then noted:
23.His relationship with each parent is positive and little can be deduced to determine where, or if he has a more significant attachment…
In relation to the issue of relocation, Ms S made the following observations in paragraph 24 of her Report:
24.Relocation and the significant geographical distance that by necessity is placed between a child and one parent, clearly has an impact on the capacity of one parent to be actively involved in the day to day life of a child and hence, has the potential to change the emerging and developing relationship between the child and his parent. The younger the child, the greater the impact on that relationship especially if it has not an established and solid base from which to develop. [X] has a good, close and positive relationship with both his parents. He feels loved and secure with each of them. The foundation of his relationship with both parents is strong and solid. Both parents must be given credit for the good relationship he has formed with each of them, notwithstanding their history. They continue to support that relationship and to ensure that [X] is not drawn into any parental conflict. It was reassuring and pleasing to observe [X] freely moving between his parents, being unconstrained in approaching or seeking attention from either and uninhibited in requesting time with either parent. He seemed very comfortable playing with both parents together and separately in the room with him.
In relation to the impact on [X] if he were to relocate to Perth, Ms S set out in paragraphs 28 to 30 of her Report the following:
28.There are benefits to [X] to relocating to Perth, the principal one being his connection to his extended family and young cousins. The mental health benefits to Ms Balducci will ensure that she will be able to parent more effectively and positively and [X] will benefit from her improved mental health and capacity to focus happily on him and his needs and be less concerned for her welfare. Ms Balducci’s employment conditions will accommodate [X]’s school timetable more easily allowing his mother to be available for him on most days and less dependent on childcare. Ms Balducci has recently formed a relationship with Mr W who [X] knows well and he should be able to adjust to the new family unit more easily.
29.However, the cost to [X] is that he will be separated from his father who he loves, with whom he has a close and positive relationship and who is an important and significant person in his life. The separation from his father may well be a difficult adjustment especially if the time spent with him is infrequent, say once a month. There is no doubt that

Mr Galluzzo is a loving, dedicated and committed father and that he is able to adequately attend to [X]’s needs. Despite the criticisms of each other, there is no doubt that [X] is a much loved child, well cared for by both his parents and both are competent and capable parents. They have similar parenting values but may place emphasis on different aspects, such as his social development. It may be that Mr Galluzzo is enmeshed with his son and if

Ms Balducci’s observations that there is an overemphasis on Mr Galluzzo spending time only with [X], then this would pose a concern for [X]’s psychological development.
30.[X] will experience grief and loss if he relocates with his mother and will need to be supported by both parents through the grieving and adjustment process. As much time with his father as possible is recommended in the early stages to assist him with this adjustment. If Ms Balducci does not relocate, it is highly likely she will undergo a period of adjustment herself as she accepts the limitation placed on her. Her mental health may be at risk, the co-operative relationship with the father may be compromised and she will not be as available to [X] both physically and emotionally, as she can be in Perth. However, Mr Galluzzo will be available to [X] although it is unlikely that the current routine will continue as [X] will be at school next year. Mr Galluzzo’s proposal that [X] spend every weekend with him is not appropriate as it will deny [X] any free time with his mother. It is not reasonable or sustainable that every weekend be spent with one parent. This has worked to date as [X] has not been involved with school and

Ms Balducci has been able to spend free time with him during the week.

Finally in her Report, Ms S makes the observation that she is of the view that if the mother is permitted to relocate, [X] does have the capacity and will be able to make the adjustment to such a relocation because of the close and strong relationship he has with his mother.
In paragraph 31 of her Report, Ms S makes the following observation:
31.… There are costs to [X]’s relocation but there are also benefits to mitigate some of the losses.
In paragraph 32 of her Report, Ms S concludes as follows:
32.If the Court allows Ms Balducci to relocate to Perth, it is the writer’s view that [X] will be able to make the adjustment, that he will be supported by his mother, he will have greater opportunities to form relationships with extended family members and his relationship with his father will be supported and promoted within the limitations of distance.
In cross-examination, Ms S confirmed that both parties had raised with her their concerns in relation to the parenting of the other, and in particular that the father thought the mother placed her needs ahead of those of [X], particularly in relation to her social activities and that the mother raised concerns in relation to the father and in particular his reluctance to accommodate [X]’s social needs or provide him with social outlets.
It was Ms S’s evidence that she did not observe either of the parties exhibiting the behaviours attributed to them by the other, but rather saw it as the difference in the parties’ personalities and their parenting styles. Ms S confirmed that she thought both parties had been very good parents and would continue to be very good parents to [X] into the future.
Ms S was strongly of the view that both parents had supported and would continue to support [X]’s relationship with the other, and she had no doubts that if permitted to relocate to Perth, the mother would continue to support and facilitate [X]’s relationship with his father.
Ms S confirmed that given [X]’s age and the strength of his relationship with both parents, that the foundation of the father-son relationship was well laid and would survive the tyranny of distance, though noting that there is never actually a right time for a child to relocate from one or other of their parents.
Ms S confirmed that she had seen Dr L’s Report and that the mother’s depression and unhappiness had been observed by her in her interviews with the mother for the preparation of the Family Report.
It was Ms S’s evidence that she believed the mother would ultimately adjust to an order that required her to remain in Melbourne, as that would be the only choice that she had. Ms S was of the view that the mother has the capacity and insight to realise that she would just have to “get on with it”, that she would not “wallow in self-pity” and would ultimately make the most of that situation. Ms S made the observation however that the mother would, in all probability, have a serious period of adjustment, over months rather than weeks, and that this would impact on [X] as her ability to parent would be impacted in that she would not be as emotionally available to him whilst she dealt with her unhappiness and probable ongoing depression during this period.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of a child that the parents have equal parental responsibility. Subsections 1 and 2 of that section provide as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
In this matter, the parties agree that orders should be made for them to have equal shared parental responsibility for [X]. That this is an appropriate order in this matter cannot be challenged. Whilst, understandably, the parties are in conflict as to the issue of relocation, they have managed to co-parent [X] cooperatively and with a level of flexibility rarely seen in this court.
[X] is described as a beautiful little boy who has a good, close and positive relationship with both his parents. This reflects the positive parenting he has received thus far in his life.
Accordingly, an order for equal shared parental responsibility will be made.
Where the court makes an order that parents have equal shared parental responsibility for their child, section 65daa of the Act requires the court to consider the child spending equal time, or substantial and significant time, with each of his or her parents.
Section 65daa of the Act provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best 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.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)         the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In the decision of MRR v GR [2010] HCA 4, the High Court considered the relationship between the best interests of the child (section 60ca) and what is reasonably practicable (section 65daa).
In paragraph 13 of MRR v GR (supra), the High Court held:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[1]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub‑section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
[1] See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651 [130]-[131] per Gummow J; [1999] HCA 21.
In paragraph 15 of their decision, the High Court further stated:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in 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…
Section 65daa(5) sets out the factors the court must have regard to when considering the question of “reasonably practicable” for the purposes of section 65daa(1) and (2). It provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
If the mother remains in Melbourne, the parties are in agreement that a shared care arrangement be put in place. That such arrangement is feasible and, in that circumstance, is in [X]’s best interests is a given.
If the mother and [X] relocate to Perth and the father remains in Melbourne, orders that [X] spend equal or significant and substantial time with his father are not reasonably practicable and the agreed arrangements for [X] in that circumstance do not make provision for arrangements of that type.
The issue for determination by the court in this matter is therefore which of the parties’ proposals, being that [X] either remain living in Melbourne or relocate to Perth, is in his best interests.
To determine what is in the best interests of the child, the court must consider the matters set out in sections 60cc(2) and (3) of the Act. Each of the matters set out under those subsections must be considered in the context of each of the parties’ behaviours and proposals, and a decision made as to which of those proposals, or such other arrangement as the court may determine, will be in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:

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

[X] has a close, loving and positive relationship with both his parents. Ms S noted that it was difficult to determine where or if [X] had a more significant attachment to either of his parents.
If [X] is to relocate to Perth with his mother, there is no doubt that this will impact on the relationship he has with his father and that it will alter the one that he currently enjoys.
The father’s ability to be involved in [X]’s life on a daily basis will be greatly impacted and he will not be able to easily have involvement in [X]’s schooling and extra-curricular activities from some 2000 kilometres away.
In her Report, Ms S speaks of [X] experiencing grief and loss if he relocates with his mother, and indicates that he will need support from both his parents through the grieving and adjustment process that would ensue.
However, Ms S comments positively on the solid foundation of the father-son relationship, and expressed a view that that relationship will not be undermined in the event of relocation, particularly in circumstances where both parties are positively reinforcing [X]’s relationship with them both.
Ms S expressed the view that [X] would be able to make the adjustment to relocation and that his relationship with his father will continue to be a close and positive one.

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

Whilst both parties had criticisms of the other in relation to aspects of their parenting, in that the father was concerned that the mother placed her needs ahead of those of [X] and the mother was concerned that the father socially isolated [X], the reality is that both acknowledge the other as being a good parent to [X] and that [X] was not at any risk of harm when in the care of each of them.
Section 60cc(3) of the Act sets out the additional considerations that are to be taken into account by the court in determining what is in the child’s best interests. I will consider each of these in turn where relevant.

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

Given that [X] is only five years of age, his views as to where he should live were appropriately not canvassed.

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 grandparent or other relative of the child)

As is most apparent from this judgment, [X] has a close, loving and solid relationship with both his mother and father.
[X] also has a close and loving relationship with his extended maternal family, consisting of his grandmother, aunts and uncles, and cousins, all of whom live in Perth. This has been achieved by him making very regular visits to Perth throughout his life, as well as the extended maternal family visiting him in Melbourne.
It is the mother’s argument that if permitted to relocate with [X] to Perth, his relationship with the extended maternal family will be enhanced and grow and enable him to grow up in the embrace of a large, loving and entwined family.
The mother is about to embark on a new life with Mr W and his son, [Y], and the mother argues that the positive relationship that [X] has with Mr W and his son will be further developed and enhanced if they are able to live together as a family in Perth.
[X] also has a positive relationship with the father’s extended family, being in particular the paternal grandfather and aunt, Ms A. Because neither of the paternal grandfather or paternal aunt are resident in Melbourne, the level of interaction that [X] has with them has not been perhaps as regular as his involvement with the maternal family. However, it is common ground that he has a loving relationship with the extended paternal family.
The mother argued that given her proposal that [X] will visit his father in Melbourne at least twelve times per year, he will be able to continue that relationship with the extended paternal family in a similar vein to that which is already in place. This is particularly so where the paternal family indicated that they would ensure that they would spend time with [X] when he was in Melbourne in the event of an order for relocation.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account sub-s.60cc(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     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; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)    spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
It is clear to this court that these parties have been able to facilitate [X]’s relationship, one with the other.
The strength of [X]’s relationship with both his parents is apparent.
Ms S commented on the ease with which [X] was able to move between both his parents and the very clear attachment that he has to both of them.
This is further evidenced by the parties’ capacity to put in place the shared care arrangements that have existed since separation, and the flexibility of those arrangements that enable [X] to be cared for by either of his parents in the context of the mother’s working commitments.

The father challenges the mother’s willingness to facilitate and encourage the continuing relationship between himself and [X] on the basis of her proposal that she be permitted to relocate with [X] to Perth. He argues that this decision is indicative of the mother not facilitating that relationship.
In paragraph 25 of the Family Report, Ms S states as follows:
25.There is no doubt that Ms Balducci values and promotes the relationship between [X] and his father… Should she be able to relocate, the writer is confident of her capacity to genuinely promote the relationship and ensure that [X] is given every opportunity to spend time and communicate with his father.
In her viva voce evidence, Ms S confirmed that it was her view that the mother promotes the relationship between [X] and his father, that she places great value on it and that she will continue to do so.
This is borne out in the evidence of Dr L and of the mother’s family. All gave evidence that the mother speaks positively about the father’s role in [X]’s life, his parenting capacity and of the importance of that relationship.
There were no issues raised at all during the hearing of the matter or in any of the evidence that the father has behaved in any way other than to encourage and facilitate [X]’s relationship with his mother.

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

Quite clearly, if [X] relocates to Perth with his mother there will be a huge change in the context of the living arrangements that he has experienced to date.
Throughout his life, [X] has lived in a shared care arrangement with both his parents and has spent time with both his parents every week.
If he were to relocate to Perth, his time with his father will be dramatically reduced, as will the frequency with which he will see his father.
Whilst this can, to some extent, be compensated by the use of electronic communication, including telephone and skype, this will be on some level a poor substitute for [X]’s weekly interaction with his father who he loves dearly.
If living in Perth, [X]’s ability to have more regular and ongoing interaction with his extended maternal family will be greatly enhanced. If in Perth, he will be attending the same school as his cousins and living in a neighbourhood where his grandmother and one of his aunts and cousins are resident.
[X] and the mother will also be joining Mr W and [Y] in their home and forming a new family unit.
[X] has a loving relationship with the extended paternal family, but does not currently spend regular weekly time with them as they live in Gippsland. Given the evidence of the paternal grandfather and aunt that they would make every effort to see [X] when he returned to Melbourne to spend time with his father, a move to Perth would not significantly impact this relationship.

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

If [X] relocates to Perth with his mother, it will create a large number of practical difficulties for him to be able to spend time and communicate with his father, particularly compared to the regular, flexible and frequent arrangements that are currently in place in Melbourne.
Because of the mother’s employment, the expense that the parties will incur in order for [X] to spend regular time with his father in Melbourne will be greatly diminished. The mother has indicated a willingness to ensure that the father and [X] will always be named as the people to participate in group one of her [omitted] discount, such that they will have unlimited discounted flights between Melbourne and Perth. The current cost would be $152.00 per return flight.
If relocation is allowed, the parties have agreed to share the costs associated with [X] coming to Melbourne to spend time with his father and both are in a financial position such that they can afford to do so.
If the mother and [X] were to remain in Melbourne, there would be no practical difficulty in the current flexible shared care arrangements continuing. The mother indicated that if she were to remain in Melbourne, she will be moving closer to [suburb omitted] in order to better balance her parenting and work commitments. The father readily agreed to such a move and indicated he would also move to be in reasonable proximity to the mother to ensure that the shared care arrangements could continue.

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

There is no doubt that both parents have the capacity to provide for [X]’s physical, emotional and intellectual needs.
It is the mother’s evidence, supported by Dr L, her treating psychiatrist, that she has and is suffering from reactional depression and anxiety arising from her inability to move back to Perth where she would have the support of her family and her longstanding close network of friends.
It is Dr L’s evidence that whilst he believes the mother will cope with a decision that doesn’t allow her to relocate, she would be at risk of continuing depression and this would in turn have an adverse affect on [X].
Similarly, Ms S was of the view that if not allowed to relocate, the mother has the capacity and insight to realise that she would have to “get on with her life” in Melbourne. However, it was Ms S’s evidence that the mother will suffer a serious period of adjustment which in turn will impact on her ability to parent [X] as she would not be emotionally available to him as she tries to deal with her disappointment and unhappiness with that circumstance.
It is the mother’s evidence that she will be able to better parent, better care for and better provide for [X]’s needs if permitted to relocate to Perth, given the emotional and practical support that her family and close friends will afford her.

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

Not relevant.

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

Not relevant.

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

It is quite apparent from this judgment that I am of the view that both parties are loving, caring, committed and appropriate parents to [X].
The father raised concerns that in his view the mother sometimes places her needs ahead of those of [X].
He gave evidence of instances where the mother had left [X] to be cared for by “a virtual stranger”, though he did concede in his evidence that such person was a virtual stranger to him, not to the mother and [X].
The father argued that the mother gave her career priority over her responsibilities as a parent and that her need to socialise was often given priority over her parental responsibilities.
The father also argued that in seeking to relocate, the mother was placing her needs before those of [X] as he believed that the best arrangements for [X] would be to have both his parents available in his daily life and that the mother’s application denied [X] that opportunity.
I do not accept that the mother is in any way placing her needs or has placed her needs ahead of those of [X]. The parties’ different attitudes to their social and home lives is quite apparent and in my view that difference does not make either parent more or less focussed on the needs of their son.
I am also satisfied that in seeking to relocate to Perth with [X], the mother is not putting her needs ahead of [X]’s. It is agreed that at all times the father has known that the mother wished to return to live in Perth. Her reasons for doing so are valid and she genuinely believes that if allowed to relocate, the benefits for [X] are positive and in his best interests.
As Ms S points out in paragraph 26 of her Family Report, the father’s argument that the mother is placing her needs before those of [X] by wanting to relocate are equally applicable to him. In circumstances where he did not initially oppose the move to Perth, it is arguable that the father is placing his needs before those of his son by changing his mind and insisting that everyone remain in Melbourne.
As Ms S succinctly puts it:
“The reality is that Mr Galluzzo has roots in Melbourne and

Ms Balducci has roots in Perth and they both knew that when they had [X].”

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

Not relevant.

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

Not relevant.

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

To their credit, both parties are in agreement as to what [X]’s living arrangements will be, whether it is determined that he live in Melbourne or Perth.
I am satisfied that once the question of relocation has been determined, the orders that thereafter flow will put in place arrangements for [X] that both parties will abide by.
Further, the parties have historically shown a remarkable capacity for flexibility and adjustment of [X]’s living arrangements to reflect their respective needs. I am more than satisfied that if there needs to be any fine-tuning or variation of orders that these parties will be able to negotiate such variations between themselves.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

It is the mother’s evidence that she and Mr W are intending to marry and ideally set up home in the home that he and [Y] live in Perth.
Whilst Mr W expressed a willingness to consider and in all probability move to Melbourne in the event that the mother is unsuccessful in her application to relocate to Perth, he indicated that this would cause considerable upheaval and difficulty for himself and [Y].
Mr W and [Y] have always lived in Perth, [Y] who is nine years of age, has an established friendship group within his school and local community, as well as close and loving relationships with his extended paternal family who also live near him and with whom he spends considerable time.
Mr W has employment in Perth, and whilst he is open to exploring the possibility of transfer, would need to face the possibility of having to leave that employment and find alternative employment in Melbourne.
Accordingly, there are some real practical issues for Mr W if he were required to move to Melbourne in the event that the mother is unable to relocate.
The father was cross-examined in relation to his capacity or willingness to move to Perth in the event that the mother was permitted to relocate to Perth with [X].
It was his evidence that he wished to continue to live in Melbourne, but he conceded that he does not own real estate in Melbourne, that he has qualifications as a [omitted] that are readily transferrable to another location and that there are no practical restrictions on him being able to move if he decided that he wanted to be closer to his son.
It is the mother’s evidence, which I accept, that if she and [X] were to relocate to Perth and the father made the decision to move to Perth, she would be amenable and agreeable to the existing shared care arrangements in relation to [X] resuming.

Conclusion

At the conclusion of evidence in this matter, and after hearing submissions from the parties’ respective Counsel, I made the observation that in many ways, relocation cases are amongst the most difficult that the court decides.
It is often the case that in matters of this type, the court is faced with two caring, loving and competent parents whose child has a close and loving relationship with both of them and whose relationship will be impacted in the event the court is persuaded that a relocation is in the child’s best interests. This is such a case.
Whilst the law is quite clear that the reason for relocation is not a relevant factor in determining the matter, it is apparent in this case that the mother has a sound and real reason to move to Perth, particularly in circumstances where her wish to return to Perth has been known by the father since the parties first met and where there was agreement between the parties to such a move when [X] was born.
Despite the parties’ different personalities and parenting styles, they have shown a remarkable capacity to work together to put in place living arrangements for [X] with a degree of flexibility and cooperation that is rarely seen in this court. During the running of the matter, I made reference to these parties as my “poster parents” for a separated couple who are able to make arrangements for their child in circumstances where one of the parents had a changing work roster.
Ultimately, the balancing act for me, when determining what is in [X]’s best interests in relation to where he lives into the future, is to look at the impact relocation would have on [X]’s existing relationship with his father against the emotional impact on the mother in the event that such relocation is not allowed.
If [X] were to relocate, there will be a dramatic alteration in the manner in which [X] shares his time with his father and Ms S quite properly indicates that this will require a period of adjustment for [X] while he experiences the grief and loss associated with the reduction of time with his father. She notes however that [X] has the capacity to make that adjustment if supported by both parents and if the father spends as much time as possible with [X] in the early stages of that relocation.
Ms S observed that the strengths of the father-son relationship are such that their relationship will persevere in the event of that relocation.
Since 2007, the mother has suffered from a reactive major depressive disorder with comorbid anxiety, arising from her inability to move back to Perth to live with her family and close friends who offer her ongoing close love and support. If unable to move, the mother’s treating psychiatrist, Dr L, and the Family Report Writer, Ms S, both agree that the mother will, with time, adjust to the disappointment and unhappiness, anger and resentment of not being allowed to make that move and will make a “good fist” of living in Melbourne. However, both Dr L and Ms S raise concerns that the mother’s capacity to parent [X] to the best of her ability will be impacted whilst such an adjustment takes place.
If the mother and [X] are permitted to relocate, the father will be very distressed by that decision and may, at least initially, have some difficulty in accepting the change that such a move will impose on his relationship with his son.
Having considered all the factors relevant to determining which outcome is in [X]’s best interests, I am satisfied that it is in his best interests that his mother be permitted to relocate to Perth with him, and that arrangements be put in place for him to spend regular time with his father in accordance with the arrangements the parties themselves have agreed to.
I am satisfied that [X] will be able to continue to have a loving, meaningful and close relationship with his father and that the mother will do everything necessary to promote and ensure that relationship continues into the future.
The mother’s capacity to parent [X] at an optimum level will be ensured by her return to Perth, as I am satisfied that her longstanding depression and anxiety will be addressed with that move.
Further, [X] will have the benefit of his close and loving extended maternal family.
Accordingly, orders will be made allowing [X] and the mother to relocate to Perth at the end of this year and for [X]’s living arrangements to reflect the parties’ agreed proposal in the event that such relocation is allowed.

I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 22 July 2011