Gerry and Trantor

[2009] FamCA 1090

FAMILY COURT OF AUSTRALIA

GERRY & TRANTOR [2009] FamCA 1090

FAMILY LAW - CHILDREN - best interests – equal shared parental responsibility - relocation

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Gerry

RESPONDENT: Ms Trantor

INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring, Solicitors

FILE NUMBER: SYC 3009 of 2007

DATE DELIVERED: 20 November 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 13, 14, 15 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Mr Fowler
Haydon Fowler Corbett Jessop

RESPONDENT IN PERSON: Ms Trantor

THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eggleston

Slade Manwaring, Solicitors

Orders

1. That each party be restrained from relocating the residence of the child T born … March, 1995, outside of the Sydney metropolitan area without the consent in writing of the other party.

2. That the child T born … March, 1995 shall live or spend time with each of the parties as follows:

   a)During school terms:

   i.With the father:

   A.From the conclusion of school Wednesday until commencement of school the following Monday in each alternate week, subject to sub paragraph B;

   B.In the event that a weekend when T is living with the father falls on a long weekend including a Monday, T shall stay with the father until the commencement of school Tuesday.

   C.From the conclusion of school on Wednesday until the commencement of school the following day in each intervening week.

   ii.Subject to the following orders, with the mother at all other times.

   b)During school holidays:

   i.For one half and the autumn, winter and spring school holiday periods with each parent, and unless otherwise agreed in writing between the parties with the father for the second half of those periods in even numbered years and the first half of those periods in odd numbered years, and with the mother for the other half of those periods.

   ii.Subject to sub-clauses (c) and (d), for the first 30 days of each Christmas school holiday period in 2009/10 and 2011/12 with the mother and with the father for the balance of those periods, and for the first half of the 2010/11 and 2012/13 Christmas school holiday periods with the father and with the mother for the second half of each of those periods.

   c)If T is not otherwise living with the father on each weekend which includes Father’s Day, T shall spend time with the father from 8:00am on Father’s Day until the commencement of school the following day.

   d)If T is not otherwise living with the mother on each weekend which includes Mother’s Day, T shall spend time with the mother from 8.00am Mother’s Day until the commencement of school the following day.

   e)At such other times as may be agreed between the parties.

3. If the mother relocates her residence to Queensland then, in substitution for the orders set out in paragraph 2, the following orders shall apply:

   a)That T shall live with the father.

   b)That he shall spend time with the mother:

   i.During school term:

   A.In Queensland on 2 weekends during each of his school terms, from Friday evening until Sunday evening or Monday evening on a long weekend.

   B.In Sydney on 2 further weekends during each of his school terms, from the conclusion of school on Friday until Sunday evening, or Monday evening on a long weekend when the wife is in Sydney.

   ii.During school holidays:

   A.During the Autumn, Winter and Spring school holiday periods, from the first Saturday until the last Friday of each such holiday period.

   B.During the Christmas school holiday periods, from the first Saturday until the evening of the 31st day of each such period.

   iii.At such other times as the parties may agree.

   c)That T’s travel between Sydney and Brisbane for the purpose of implementing order 3(b) shall be by air.

   d)That the parents share the cost of T’s said air travel equally.

4. That the mother is hereby entitled to take T on vacation to the United States of America during the time she is to spend with him during each Christmas school holiday period in 2009/10 and 2011/12 pursuant to above orders.

5. That for the purpose of implementing Order 4, T’s passport or passports are to be returned to the mother forthwith.

6. That the parties shall note the obligations created by the Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3009 of 2007

Mr Gerry

Applicant

And

Ms Trantor

Respondent

REASONS FOR JUDGMENT

1. Essentially, these proceedings are to determine whether the wife (who is the respondent) can take the parties’ younger child, T (“T”), who is aged about 14 years, having been born in March 1995, to live on the Sunshine Coast in Queensland.

2. Both parties and their two children currently live in Sydney in the Sutherland Shire.

3. The eldest child, a girl named L, is approaching 18 years of age.  Appropriate orders affecting L were made by consent on 29 April 2008.  She can by these, as she will by law once she turns 18, live where she pleases.  Currently, L lives with the wife but sees much of the husband.  Each party hopes that L will live with him or her whether or not the wife takes T to live in Queensland.

4. The wife arrived in Australia in 1987 and in May 1987 the parties were married. The wife’s family lives in the United States where she was born in mid 1956. The wife has no family in Australia other than the children. The parties had met whilst they were each on holiday on the Sunshine Coast in Queensland. She was and is still a citizen of the United States of America, although she is now also an Australian citizen.

5. The wife has worked part-time over the years since she was pregnant with T.  She was originally a chef but found this work too taxing. She has more than one tertiary degree or qualification. She presently attends University in Sydney and is studying in the faculty of Health and Behavioural Sciences.  She wishes to attend the University of the Sunshine Coast at Maroochydore which is 90 kilometres from Brisbane.  She has been granted a deferred place for 2009 but will not be able to take it up.  She hopes to attend in 2010 or 2011 instead.  The wife says that she needs to move from the University in Sydney because the course she is doing there is full-time and she needs to obtain a job so must do a part-time course.  She contends that the travel to University involves considerable time and expense and that the course is expensive.  By comparison, she says the course at the University of the Sunshine Coast may be undertaken part-time. A move to the Sunshine Coast will allow her to work full-time and provide her with more time to care for T.

6. The wife says that because it is cheaper to live on the Sunshine Coast than in Sydney she will be better able to afford to purchase a house once the parties finalise their property proceedings in this Court. She argued that the move will not be disruptive for T and that she will be better able to ensure he continues his schooling to HSC level. She asserted that parting from his friends and milieu will not set him back because these are transient anyway.  The wife says T will continue to see enough of the husband. It is part of her argument that he has never said he does not want to move to the Sunshine Coast.

7. The husband was born in Sydney in 1963 and is a factory manager in the Sutherland Shire area.  He has worked in that factory since before L’s birth. He currently lives in a four bedroom townhouse in a southern Sydney suburb with Ms W and her two children, a 14 year old son, K, and a 22 year old daughter.  Ms W is 45 years old and is employed as a permanent part-time financial services manager.  Ms W works each week day except Wednesday.

8. The husband is opposed to T moving to the Sunshine Coast and asserts that the child would see much less of him than he now does whereas T wants and needs to see more of him. The husband claims that L will probably not move to the Sunshine Coast if the wife moves and a move by T will separate him from L too. When I asked her, the wife said she had not made up her mind about whether she will move to the Sunshine Coast if the child is not permitted to accompany her. I am of the view, from observing and listening to the wife, that there is a strong prospect that she will relocate to Queensland whether or not T is permitted to accompany her.

9. The husband is concerned that if T goes to live in Queensland it will be a step toward a second move to the United States of America.  He is also concerned that he will have less opportunity to be involved in decision-making about the child’s future, particularly because he says that T wishes to leave school and commence an apprenticeship.  The husband considers that it is in T’s interest to do so but, as the wife is against it, she will be in a better position to pressure the child not to leave school if he lives with her in Queensland.

10. The wife must have done most of the parenting of the children before separation as the husband’s current job has involved long working hours during the week and, at times, work on the weekends.  The husband usually left for work at 6.00am and sometimes did not return home until 6.00pm.  He usually returned between 4.00pm and 4.30pm. Since separation, the husband has also returned home for breakfast so he can set the children off to school or drive them there before returning to work. He makes up for work time lost in doing this by often working to 6.00pm.  I assume a work regime involving long hours has been in place for years. In the course of the marriage the husband also worked on weekends renovating two houses.

11. In recent years the husband’s job involved travel, mainly interstate but occasionally overseas.  The husband has travelled interstate 18 times in the last 2 ½ years, usually for the day only but sometimes for longer.  Overseas travel occurred less than once a year on average and involved being away for five days or less at a time.  Work related travel or his hours of work do not seem to me to have adversely interfered with the husband’s ability to raise the children or his relationship with them.

12. From the time when the husband was at home both he and the wife raised the children co-operatively and he undertook all the usual parental obligations and activities until the parties separated under the same roof in April 2005.  By this time the parties were living at B, a prosperous suburb in the Sutherland Shire. When the husband moved out of the former matrimonial home on 19 August 2006, he did not take the children with him.  The husband lived with his parents at first. In January 2007 he commenced living with Ms W.

13. On 27 October 2006 the husband initiated proceedings for parenting and property orders.  The children had commenced to stay with him on alternate weekends and he would collect them from school on Friday and return them to the wife on Sunday evening.  The children would also stay overnight with him on each Tuesday. The husband says he commenced the parenting proceedings because the wife was not consulting him on matters related to the management of the children’s lives.  The husband felt some of the decisions the wife made were to meet her needs rather than the children’s needs.

14. Having had ample opportunity to assess the wife, especially because she was self-represented, I accept that the wife probably had a strong tendency to meet her own needs in preference to those of the children and still does.  Although the husband also has a tendency to meet his own needs in preference to those of the children; his unwillingness to allow L to keep a car he bought for her at the wife’s home where she lives is a stark example, it is not as marked as that of the wife.

15. On 20 December 2006 the parties consented to interim orders.  These provided that the children live with the wife, who was and is still living in the former matrimonial home at D, and see the husband from after school on Friday until 5.00pm on Sunday on alternate weekends, on each Wednesday from 4.00pm until school the next day, and for half of the school holidays and on special days.  No orders were made about telephone contact with the children as the husband and wife did not dispute that the children could speak to the husband by telephone on most of the days they live with the wife. There is still no issue over telephone contact. There was also an order for a third person to hold the children’s passports and not release them without written agreement of the parties or an order of the Court.  It is relevant that the passports are still being held, although the husband had allowed the children to visit the United States of America with the wife in July 2006.

16. The wife started off being quite inflexible about contact arrangements. By about mid 2008 she had commenced to permit T to stay with the husband long enough to have dinner on Sunday evenings. T has, since then, often asked if he could stay with the husband overnight on Sunday.

17. L soon became unhappy with the arrangements which resulted from the current orders. By about mid 2007 she was complaining to the husband about the wife and arguing with the wife.  Although the husband tried to convince L that the wife was not being unreasonable, by September 2007 the wife told L she was no longer to live with her.  L moved to the husband’s home.  By this time L had lost a lot of weight because she was not eating adequately.  Once L settled in with the husband and Ms W she commenced to recover her appetite and her health.

18. At the time of the move L had been attending C High School and was in Year 10.  She had been at that school since the middle of 2007 when the wife had enrolled her there after taking her out of M College, where she had been since Year 7.  The husband made much of the fact that before doing this the wife did not consult him.  L was not happy at C High School.

19. In January 2008 the husband and L made enquiries at a TAFE institution after being advised by L’s year master and headmaster at C High School that L might be happier and better off if she completed her HSC at a TAFE.  The husband consulted the wife who would not agree to the change.  He, nevertheless, allowed L to leave school and continue her studies at TAFE.  On the evidence before me, it is highly likely that the move has been beneficial for L.  It demonstrates that the husband has been more realistic and less rigid than the wife in matters associated with L’s welfare.  This suggests that the husband may be better attuned to T’s needs than the wife.

20. After L left the wife’s home she did not have any contact with the wife for more than a month.  The husband encouraged L to resume contact but she only saw the wife on a few occasions until February 2008.  Most of their interaction was conflictual when they did meet.  However, the relationship between L and the wife then commenced to improve and at the end of March 2008 L commenced to live with the wife and the husband on a week about basis.  This is what L wanted. This arrangement was formalized by the consent orders which were made on 29 April 2008.  These provided that, subject to her wishes, L live with each parent in alternating weekly blocks.

21. In November 2008 L asked and was permitted to change to alternating two week periods living with each parent, but by the end of the year she decided to live at the former matrimonial home and visit the husband, only occasionally spending overnight with him.  The husband was happy to permit this.  L’s reason for wanting to change was that Ms W’s daughter had commenced to live with the husband and Ms W and L would have had to share a bedroom with T.  L preferred to move to a self-contained flat at the former matrimonial home and has since only occasionally stayed overnight at the husband’s house.

22. If the wife goes to live in Queensland, the husband expects that L will choose to remain in Sydney.  In that event, or if the wife stays in Sydney but after the B property is sold moves to a home which does not suit L, the husband will rent or buy a house which will accommodate her and expects L will then choose to live with him.

23. It is of relevance that L is devoted to animals.  At TAFE she is doing an animal care course in addition to the HSC.  L intends to undertake a tertiary course at TAFE to allow her to qualify as a veterinary nurse once she completes her HSC.  The relevance of this is that the wife has relied on the fact that she has the care of L’s animals to argue that she will not be able to take the cheaper Sydney options of moving to a flat or townhouse because she must house the animals.  I do not accept that when the wife has to move from the D property, probably in 2011, that she will be forced to live in a house with a suitable yard because of these animals.  The animals in question are three cats, one dog and two fowls.  One does not need a yard to accommodate cats.  There is no suggestion that the dog is of a type which needs a yard.  It is only the two chickens which are said to need a yard.

24. Surely L should be able to arrange for their care rather than force the wife into unnecessary expense of purchasing a house with a yard rather than a flat or townhouse.  After all, she is or soon will be old enough to appreciate that pet ownership should be accompanied by responsibility. I must compare the wife’s responsibility to provide for the two chickens with T’s need to have close, frequent, regular and significant contact with the husband, if that is what he needs. The suggestion that the welfare of the chickens or even L’s need to keep them could be sufficient to displace T’s needs should be seen in its proper light; as ridiculous. I cannot understand why the wife has sought to justify her stance by reliance on a need to keep the fowls in preference to a need to advance T’s welfare.  It must be realised that the wife is not claiming that the husband’s influence over T is other than good.

25. The other significant arguments upon which the wife relies for being permitted to take T to live on the Sunshine Coast have little weight when the evidence for them is examined.

26. The claim that the Sunshine Coast is a cheaper place to live is essentially based on the wife’s assertion that property prices are lower there.  The wife produced no convincing evidence to support this assertion.  The only evidence the wife relied on is a computer printout of the area profile of B which says the median house price there is $950,000.00 and that in 2006, 2007 and 2008 the lowest sale price was about $600,000.00.  B is a very small part of the Sutherland Shire.  Only about 1,500 people live there.  It is a waterfront area and can be said to be one of the most desirable parts of the Sutherland Shire area.  Within the general area are many less prestigious suburbs where house prices are likely to be much lower.  Much of the general area is a relatively short train ride or convenient drive to University. 

27. The wife said she planned to purchase a house on the Sunshine Coast about mid-way between Brisbane and Maroochydore to allow T and L to eventually go to TAFE in Brisbane and herself to University in Maroochydore.  There are many areas in the Sutherland Shire which would at least equally conveniently permit the wife to attend University and L to attend a TAFE in Sydney and which would allow T to continue to attend his current school, and when he leaves, to attend a convenient TAFE.  Because it is 1 ½ hours by road between Maroochydore and Brisbane and probably much more by train, one could predict that it is likely to take an hour or more to get to either school, TAFE or University from any home the wife might buy which is about halfway between them.  It is likely to take less time to get from a house in the Sutherland Shire in an area where house prices are modest to C High School, TAFE, the University, or an appropriate Sydney suburban TAFE. The wife has made few enquiries about suitable courses for the children if she were to move to the Sunshine Coast, although she has established that they will probably have to engage in tertiary study in Brisbane rather than on the Sunshine Coast itself.

1. I have not overlooked that the wife’s essential objection to the University in Sydney is that the course she is undertaking is full-time.  This is simply untrue.  Both the Bachelor of … (4 years full-time) and Bachelor of … (3 years full-time) courses at the University in Sydney can be undertaken on a part-time basis.  The documentation she provided about them clearly states this. The wife is so lacking in realism and practicality in her approach that she has simply failed to appreciate this despite actually attending that University in the relevant faculty.  She could not have read her own documentary evidence or could not have read it carefully. This and her stance about the chickens leave me with doubt about her ability to plan for the future and therefore her ability to provide T with a stable and secure life if she moves with him to Queensland.

2. The Bachelor of … course at the University of the Sunshine Coast is a four year full-time course.  One would expect that it would be completed on a part-time basis in six years.  Given that the wife is likely to get credit for some of the subjects she will have passed at the University in Sydney, she is not likely to complete the course until about five years after the end of this year.  By the time the wife completes any of the prospective part time courses, whether at universities in Sydney or Maroochydore, she will be very close to 60 years old.  The wife has made no realistic enquiries about her subsequent career prospects.  It is fair to say that they are not likely to be good.  The wife’s age is not the only factor.  Her lack of realism and practicality are likely to adversely affect her ability to hold an appropriate job if she is able to get one.  The wife has no factually based idea of what might be available on the Sunshine Coast, Brisbane or Sydney, but she has much hope.  Another example of the wife’s lack of practicality is that at present she is doing two subjects (psychology and population health) at University. The first mentioned is not mentioned at all as being available for her planned studies in Queensland.  One would have expected the wife to choose only subjects which could be counted toward her degree if she transfers from one University to the other.

3. Since separation T has always lived with the wife. According to the husband, whose evidence on this issue I accept, he has spent much of the time with the husband and has engaged in activities with the husband in which he shows great interest and some aptitude.  I am quite satisfied that T and the husband have spent much more time together involved in activities which interest them both than is usual for a boy of his age and his father both before and since separation.  The husband is also interested in and involved in decisions about his current education as well as his future.  T is very interested in mechanical objects and, with the husband’s guidance, repairs his scooters and bicycles as well as those of his friends.  T regularly and frequently goes dirt motorcycling, boating, wakeboarding, water skiing and snowboarding with the husband.  T calls in to see the husband frequently when contact is not scheduled by any orders.

4. The husband is not merely interested in the present for T.  The husband helps him with homework regularly, as does the wife, but in addition he has formulated what he regards as beneficial plan for the child’s future. T’s time at school has not been characterized by academic success, although he is able to do well enough if he has a mind to do so.  The husband, I think, sensibly and realistically, feels that T, who wants to leave school at the end of Year 10 and commence an apprenticeship, should be permitted and even encouraged to do so.  The husband thinks that this is what will suit T best.  The wife wants T to complete Year 12, to give him a better basic education which she claims will allow him to have a better chance of being accepted into a suitable apprenticeship and to succeed in the apprenticeship course.  Again, I regard the wife as having failed to face reality about T, who is quite unlikely to gain much from Years 11 and 12 at school, but will complete an apprenticeship two years earlier if he leaves school at the end of Year 10 and, as is likely, is accepted into an apprenticeship course at TAFE.

5. My assessment of the parties leads me to conclude that if T goes to Queensland with the wife she is likely to attempt to pressure him to remain at school. In the absence of the husband, she is likely to succeed to T’s detriment.  That the wife is not well attuned to the child’s needs is easily demonstrated.  According to the husband, T not only enjoys his time with him, he has many friends, mostly boys his own age with similar interests.  The husband appreciates that T regards these friendships as important and needs his friends.  That this is the situation is confirmed by the family consultant, Dr F, who regards the wife as giving insufficient credence to T’s stated needs.  The wife simply regards these friendships as transient and does not accept that they should be maintained if the child’s welfare is to be promoted.  Of course, the wife’s attitude to T’s relationship with the husband is little different if it is as stated in her affidavit. She said in it that she “believes there will be no diminution in the quality of the relationship between the children and the applicant because of relocation to Queensland”.  In T’s case, this is simply incorrect.  I have come to this conclusion, inter alia, because T actually wants to spend more rather than less time with the husband.  I shall expand on the facts supporting this finding later.

6. There are three family reports by Dr F.  They were made in October 2007, April 2008 and June 2009. When she first saw T he was 12 ½ years of age.  T said then that he would prefer to spend more time with the husband.  It is also relevant that L had, only about one week before, gone to live with the husband.  T said he was “pretty close” to L and missed her.  T told Dr F that he would miss his father and sister too much if the wife took him to live in Queensland.  He expressed the wish for “...Mum to stay here until we’re much bigger then she could go and do what she wants”, presumably without taking him.  L, too, did not want to go to Queensland. She felt she would be separated from T and the husband if she did.  At that stage Dr F felt the children were both of an age and maturity which required their views to be given “considerable weight”.  When Dr F saw T in April 2008 he was happy with the existing arrangements except that he wanted a later return to the wife on Sundays.  He did not wish to spend equal time with the husband as the husband wished but also did not want to go to live in Queensland.  He wanted to be able to have frequent time with the husband.  L did not want to live in Queensland if the wife went to live there.

7. When T saw Dr F in May 2009, he told her he enjoyed spending time with his friends and at the husband’s work making things and using the machines and would like to spend more time with the husband.  T did not want an equal time week about arrangement but wanted to spend from Wednesday immediately after school until the following Sunday at 8.00pm, then the next Wednesday from after school until school the next morning with the husband.  T resented being “made” by the wife to go home from school on Wednesdays before going to the husband.  He, quite reasonably, wanted to go directly to the husband’s home from school whether or not the husband would be home from work when he arrived. He obviously did not resent being there with Ms W or on his own. He continued to resist the idea of living in Queensland but in a demonstration of his real feelings and needs as opposed to the expression of his wishes which were designed to meet one or both parents’ needs, he also said that if he lived in Sydney with the husband and the wife went to Queensland he would like to spend most of his holidays with the wife.  T also expressed very strong views about his future.  He said wanted to finish school on completing Year 10 and do a trade apprenticeship such as carpentry or boat building.  He was apprehensive and in conflict with the wife over this.

8. When interviewed by Dr F, L had a clear opinion about T’s wishes and needs.  She said T “just loves hanging out with Dad” but that “he needs his Mum”.  I accept that her view is accurate. She seems to have a better understanding of T’s feelings and needs than the wife if the wife is being truthful in what she says she thinks T’s needs are.  Significantly, the wife said in her affidavit and confirmed in oral evidence that neither child had told her that he or she did not wish to go to live in Queensland.  She disingenuously used this slant on the truth to claim and argue that it meant they wished to go to Queensland. She said they are always truthful with her and would tell her if it were otherwise.  It is quite enlightening that the wife made this point after having received and read Dr F’s report of June 2009. It clearly recorded L’s concern that neither parent should know what she and T had told Dr F.  L said she would rather stay in Sydney too, but felt obliged to go to Queensland with the wife.  She did not want to be separated from T.  Her feelings are relevant in these proceedings because they demonstrate her relationship with T and therefore relevant to consideration of T’s welfare.

9. Dr F related what the parties told her of their relevant attitudes in her latest report.  She made no comment on these but clearly accepted what the husband said as reflective of his truth.  In the circumstances, this seems to me to have been quite fair and appropriate.  The husband’s attitudes are those of a competent, realistic and loving parent.  He confirmed that impression when he gave his oral evidence. 

10. The record of the wife’s attitudes is far less complimentary to her.  A picture emerges of a relatively selfish and insensitive parent who does not seem able to accept that the children’s feelings, ideas and needs might differ from her own.  Her perception of her own needs does not seem to have been the result of any attempt at equating them with reality or of self-examination.  It is significant that Dr F thought it relevant to mention that the wife knows no-one in Queensland, as I established to be the case, and has two “friends” in Sydney.  In fact, she has no friends who live close to her.  Only one lives in Sydney; on the other side of Sydney, on the North Shore.  The other lives in the Blue Mountains.  She sees little of them and has no other social life.  I found her to be a very insular individual whose general lack of social relationships reflect her deficient ability to understand and cater to the feelings and needs of others including her own children.

11. Dr F’s recommendation for T is that, if the wife moves to Queensland before T finishes school, he should then live then with the husband.  However, her main recommendation is that T live with the wife in Sydney and that T stay with the husband from Wednesday after school until Sunday at 8.00pm and in each other week after school on Wednesday to the start of school on Thursday in each two weeks during school term and for half the school holidays and on special days.

12. The parties have already had a consent final order made which gave each equal shared parental responsibility for T.  This was done on 29 April 2008.  It is in this context that I must consider the other statutory requirements which have to be fulfilled before determining the issues in these proceedings.

13. One must set out on such determination by firstly noting the objects of the Family Law Act in respect of children. Section 60B requires the Court to seek to ensure that children grow up with the benefit of both parents having a meaningful involvement in their lives so far as is consistent with their best interests and that children receive adequate and proper parenting because this will help them achieve their full potential. The Court must also ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. There is also a requirement to prevent physical and psychological harm and the like, but this aspect plays no part in these proceedings because there are no relevant allegations.

14. The basis for the objects of the Act are the principles that each child, unless it is in the child’s best interests to provide otherwise, ought to know and be cared for by both parents and have a right to spend time on a regular basis with, and communicate regularly with, not only both parents but others such as siblings and grandparents who are significant to them, and that parents should jointly share the duties and responsibilities of raising their children. There are some other principles which need not be mentioned here because they are not, on the evidence, applicable.  Of course, in relocation cases such as this, the principles which I have specifically mentioned are at the heart of the issues which must be determined.

15. Section 60CA of the Act can be regarded as the pivotal statutory provision in children’s cases. It provides that although one must decide on the living arrangements for a child by having regard to the wishes and needs of the adults who are contesting the proceedings, the paramount consideration is the best interests of the child.  In deciding what is in a child’s best interests, the Court must, due to s.60CC of the Act, consider certain prescribed matters.  I shall refer to these matters at a later stage.

16. A requirement of the Act in reaching its decision on what children’s orders to make, if orders have been made giving the parents equal shared parental responsibility as have been made here, is for the Court to consider whether it would be in the best interests of a child and practical for it to spend equal time with each parent and if it is, to consider making an order for equal time.  Here it is clearly only practical to make an equal time order if the wife does not go to Queensland.  However, if one is not made, where there is an equal shared parental responsibility order, the Court must consider whether it would be in the child’s best interests for the child to spend substantial and significant time with each parent and whether such an order is reasonably practicable.  If it is, the Court must consider making an order which achieves this.  The Act determines the meaning of “substantial and significant time”.  It can only be that if it allows the child to spend weekends, holidays, week days, and periods when the child is not on school holidays and also allows the relevant parent to be involved in the child’s daily routine and take part in special occasions and events which are significant to the child and allows the child to take part in events of particular significance to that parent. 

17. The reality here is, even though the wife has offered to pay half the cost of airfares for regular and frequent contact, that she is unlikely to be able to afford to do that and the husband will probably be limited in what he can afford to spend on airfares even though T will be able to travel alone. Thus, distance will make it quite impractical for substantial and significant contact time to be implemented if T lives in Queensland.

18. Section 60CC of the Act puts more emphasis on two particular factors than the other factors it requires the Court to consider in deciding where a child’s best interests lie.

19. One of these is the need to protect the child from harm.  Although, there is clearly no need here for any measures to protect T from physical harm, the evidence raises the possibility that he may need protection from psychological harm.  After all, the issue of being distanced from the husband is really about that need.  However, the terms of s.60CC(2)(b) are quite specific.  The Court is only required to consider psychological harm arising from the child being exposed to or subjected to “abuse, neglect or family violence”.  “Abuse” is limited by s.4 of the Act to “assaults” and involving the child in sexual activity, so emotional abuse, giving “abuse” its ordinary rather than statutory meaning, causing psychological harm need not be considered pursuant to s.60CC(2).  This is in my opinion a significant failing in the legislation.  Surely, emotional abuse ought to be a primary consideration when deciding what is in a child’s best interests. In my experience, this type of abuse is much more common than physical abuse or sexual abuse. In children’s cases it is rife. The definition of “abuse” should be amended to include emotional abuse. It is not sufficient that as a matter of lesser weight the Court must, pursuant to s.60CC(3)(f), consider the capacity of those who are involved in a child’s case to provide for the “emotional...needs” of the child or that the Court may be able to consider this under some other paragraph of s.60CC(3).

20. In addition to what is said by Dr F about T’s need to see more rather than less of his father, the husband’s evidence which I accept is that T constantly asks both directly and indirectly to spend more time with the husband . The wife’s claim that he will not be harmed by seeing less of him is much like her claim that T has not told her he does not wish to go to live in Queensland; it demonstrates a lack of focus on T’s emotional needs and a preference to meet her own needs or an inability to understand T’s needs or both. The latter is the most likely situation. The wife is so insensitive to the child’s needs for his father’s company that when Dr F suggested to her that she might consider T spending more than half the holidays with the husband if he lives in Queensland, she unequivocally rejected the idea even though it was put to her in a manner which should have made it clear that the expert held the view that this would benefit T in the circumstances. The wife had already told Dr F that she did not think that having parents living so far apart would cause the children some difficulty when Dr F asked a rhetorical question about this. Despite the suggestion in this question that the children, who love and need both parents, obviously would be somewhat disturbed by one of the parents living so far away, the wife was quite oblivious to such a prospect and/or so intent on meeting her own goals that she did not care sufficiently about such a prospect to answer the question candidly.

21. This leads to the other primary consideration which must be undertaken due to s.60CC(2). It is the benefit to the child of having a meaningful relationship with both parents. Here there are three possibilities which touch this concept. Either T will live with the wife in Queensland and be separated to a large degree from the husband or he will live in Sydney and be separated to an equal extent from the wife if she goes to live in Queensland or will not be separated by distance from either party. It is more likely than not that the wife will go to live in Queensland if I do not allow T to live there. However, she is unlikely to do so until the former matrimonial home is sold, so the likelihood is that she will remain in Sydney until about the beginning of 2011. 

22. My assessment of the wife is that if T lives with her in Queensland she will actively unconsciously pressure T to loosen his attachment to the husband and that this and actual separation will damage the relationship between the child and the husband more than if T lives with the wife in Sydney. Of course, T’s relationship with the husband will strengthen if T lives with the husband and the wife goes to live in Queensland. In that event, T’s need for the wife is likely to diminish with time and their actual relationship will become somewhat emasculated. The best result for T’s overall relationship with both parents would be if he continues to live in Sydney with the wife and is able to see the husband frequently and regularly. In that instance there is the added benefit of the certainty that his contact with his sister will be retained at a high level.

1. The secondary or additional considerations required by s.60CC can be dealt with in the order in which they are mentioned in s.60CC(3):

   a)Expressed views and factors relevant to the weight to be given to them – T has consistently and unequivocally expressed a wish to spend more time than he has to date with the husband, yet to live mainly with the wife. His attitude should be given considerable weight because of his age and the relationship between these views and his career ambitions. His ambitions are mature and realistic and his expressed views will probably not be fulfilled unless the wife is restrained from taking him to live on the Sunshine Coast. Even if she is, T will in all likelihood be prevented from achieving his wish to live with his mother and see more of his father because the wife will probably go to live in Queensland without him. However, if no such injunction is placed on her, the chance that she will remain in Sydney with T to allow him to live with her and see more of the husband will be lost.

   b)The nature of the relationship between T and each parent and other relevant persons to him – T is close to the wife, the husband and L. He has friends including K to whom he is close and for who he has, as is normal for a boy of his age, a real need. It is likely that his relationship with Ms W is good but he does not seem to have a need for her or her daughter. The wife is far less sensitive to and accommodating of his needs than the husband. This seems to indicate that, as time passes, T’s relationship with the husband will improve while that with the wife is likely to deteriorate if T has sufficient time with each to meet his constant needs.

   c)The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and T – The husband has a good capacity to foster a good relationship between the wife and T and is willing to do so. The nature of the wife’s application and the weakness and faults in the facts and arguments upon which it relies is a strong indication that there is a significant inability and, if not conscious, an inherent unwillingness to encourage the good relationship between T and the husband to continue.

   d)Effect of change – If T is taken to the Sunshine Coast he will be separated to a larger extent than now from his father who he wishes to see more rather than less of and, probably, his sister too. In each instance this will be to his detriment. Of course, if the wife is not permitted to take him to live on the Sunshine Coast and decides, as I think she probably would in that case, to go to live there anyway, this, too, will be to T’s emotional detriment as he has a need for his mother to be his principal carer.

   A significant disadvantage to T if he does go to the Sunshine Coast with the wife will be the fact that her influence over him will probably prevail against that of the husband, and T will not be able to resist the pressure on him to continue to year 12 rather than leave school and commence an apprenticeship after year 10. I think that this will be of significant disadvantage to him as will going to a place where he has no friends and social milieu and will probably also be isolated from his sister to whom he is close.

   e)Practical difficulties inherent in a move to the Sunshine Coast – These are obvious. Frequent aircraft travel, although T will be able to travel on his own, is inconvenient and expensive, especially as it will either be from Maroochydore or Brisbane which are each some distance from where the wife plans to live. Other forms of travel would usually be inappropriate or inadvisable for T on his own and, in some instances, even more expensive i.e. overnight rail travel. Air travel is practical and appropriate for school holiday contact and other relatively infrequent contact.

   f)The parents’ and other significant persons’ capacity to provide for T’s needs, including emotional and intellectual needs – Although the wife puts more emphasis on general education for T, this does not mean she is better able to provide for his intellectual needs. He is not interested in school but he is interested in gaining an apprenticeship so he can make a career for himself. The husband recognises his attitudes and interests related to doing so and can cater for them in a practical manner. In my assessment, this caters better for T’s relevant emotional and intellectual needs. Otherwise, the parties seem to be of similar intellect, but the husband is more sensitive to and has more insight about T’s feelings and needs. The wife’s plans are impractical and involve uncertainty, lack of realism and significant risks to her financial viability. The husband will keep his current job for which he receives a significant wage. He is much better placed to provide materially for T than the wife and is likely to maintain such placement when compared with the wife. This will be the case notwithstanding child support obligations.

   T has made a rather adult decision about his working future which, to me, appears to be appropriate, practical and realistic and therefore is likely to be beneficial to him. The husband supports him in this and is thereby shown to be practical and focussed on his welfare. The wife’s stance is more theoretical and ideological and less practical and does not seem to be the result of a focus on T’s actual needs. That she would even consider relocating in view of the clear evidence that T needs to live with her yet spend more time with the husband is very telling about her ability to meet the child’s needs rather than her own.

   g)Characteristics of the child and parents – T’s clearly defined and practical career goals indicate that he is sensible and more mature for his age than is usual.

   The wife’s family lives in the United States. T has already visited them. It would undoubtedly be in his best interests to see a lot more of them. The wife should be permitted to take him there although it may be appropriate for adequate safeguards to be put in place to ensure that he will be returned to Australia in a timely fashion.

   i)The parents’ attitudes to T and to their parental responsibilities – The husband is practical, insightful and child focussed and in my view is a responsible and loving parent. The wife is much more self-indulgent. Her aims and the lack of planning and foresight which are involved in them demonstrate a high level of parental irresponsibility.

   l)Preferability of orders which will avoid further children’s proceedings – These are nearly always preferable. This case is not an exception. However, I am not of a view that any particular orders are more or less likely to result in any fresh application for children’s orders.

   m)Other relevant facts or circumstances – All the facts and circumstances which I regard, either alone or in combination with any other facts or circumstances raised in these proceedings, as having the potential to affect the outcome have been canvassed above.

2. After weighing all the matters which have been mentioned or discussed, I conclude that although T has a need to be cared for primarily by the wife and I regard the wife as likely to move to the Sunshine Coast if I do not permit the child to be taken to live there, it will be in T’s best interests to refuse to allow the wife to take him to live on the Sunshine Coast. T’s welfare demands that he continue to live in Sydney even if he does not live with the wife because of the combined benefit he will gain from the ability to see more of his father than he is now seeing, the maintenance of his circle of friends and social milieu, the input and influence the husband particularly in making decisions for his care, his education and career, the avoidance of the uncertainties, inconveniences and risks inherent in a move to the Sunshine Coast with the wife and the avoidance of his care being essentially in the hands of the wife, who is self-indulgent, short-sighted and lacks insight about them and will give insufficient weight to them, outweigh the benefit T will gain from meeting his need to live principally with the wife. At his age the need to be cared for by the wife is likely to diminish rapidly. He is likely to leave the Sunshine Coast and return to Sydney as soon as he is able. I think the husband should, because he is much less selfish and much more attuned to T’s needs, not be put in a situation where his understanding and influence is diminished by his lack of immediateness to and isolation from T’s day-to day-existence.

3. Since the parties separated T has lived principally with the wife and has had contact with the husband during school term on each Wednesday evening and on each alternate weekend ending on Sunday evening and for half the school holidays and on special days. He would also visit the father after school at other times. At the hearing, the father said that if T does not live in Queensland he would like T to live in an arrangement which conforms to wishes the child expressed to the Family Consultant. These assume that T will live principally with the wife and will live with the husband during school term from after school on Wednesday to the following Monday and overnight on each other Wednesday in each fortnight. There was no suggestion that arrangements for school holidays and special days should change from the present. T actually told the Family Consultant that he would like to live with his father on Wednesday each fortnight immediately after school until he goes to school the next day and on each other Wednesday immediately after school during school term until the following Sunday evening at 8pm. Nevertheless, T made it perfectly clear to Dr F that if he is required to live in Sydney and the wife moves to Queensland he would like to spend most of his school holidays with the wife and that he would like to spend alternate Christmases and birthdays with each parent and Easter with whichever parent he would otherwise happen to be with.   

4. The formal orders the husband seeks are:

   1.That each party be restrained from relocating the residence of the child [T] born … March, 1995, outside of the Sydney metropolitan area without the consent in writing of the other party.

   2.That the child [T] born … March, 1995 live with each of the parties as follows:

   (a)During school terms:

   i.With the father:

   A.From the conclusion of school Wednesday until commencement of school the following Monday in each alternate week, subject to sub paragraph B;

   B.In the event that a weekend when [T] is living with the father falls on a long weekend including a Monday, [T] shall stay with the father until the commencement of school Tuesday.

   C.From the conclusion of school Wednesday until the commencement of school the following day in each intervening week.

   ii. Subject to the following orders, with the mother at all times.

   (b)     During school holidays:

   iii. For one half and the autumn, winter and spring school holiday periods with each parent, and unless otherwise agreed in writing between the parties with the father for the second half of those holidays in even numbered years and the first half of those holidays in odd numbered years, and with the mother for the other half of those holiday periods.

   iv.   Subject to sub clauses (c) and (d), for the first half Christmas school holiday period with the father, and the second half of each Christmas school holiday period with the mother.

   (c)     With the mother 5.00pm Christmas Eve until 3.00pm Christmas Day in even numbers years.

   (d)     With the mother from 3.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years.

   (e)     If [T] is not otherwise living with the father on the weekend which includes Father’s Day, [T] shall be with the father from 8:00am Father’s Day until commencement of school the following day.

   (f)     If [T] is not otherwise living with the mother on the weekend which includes Mother’s Day, [T] shall be with the mother from 8.00am Mother’s Day until commencement of school the following day.

   (g)     At such other times as may be agreed between the parties.

   3.If the mother relocates her residence to Queensland then, in substitution for the orders set out in paragraph 3, the following orders shall apply. 

   a)That the child [T] live with the father.

   b)That the child [T] spend time with the mother as follows:

   (i)During school terms:

   A.On 2 weekends during school term in Queensland, from Friday evening until Sunday evening.

   B.On 2 further weekends during school term in Sydney, from the conclusion of school Friday until Sunday evening.

   (ii)During school holidays:

   A.For one half of the autumn and spring school holiday periods, and unless otherwise agreed in writing between the parties for the first half of those holidays in even numbered years and the second half of those holidays in odd numbered years.

   B.During the winter school holiday period, from the first Saturday until the last Friday of the holiday period.

   C.From Christmas Eve until Boxing Day in even numbered years.

   (iii).At such other times as the parties may agree.

5. The orders sought by the wife, show lack of foresight, planning and reality. She failed to allow for the possibility that T will have to live in Sydney. The orders she has sought are irrelevant with one exception. It is that T be permitted to travel to the United States of America to visit her family each year commencing 2009. It can only benefit him to visit them in his Christmas holidays, provided he is returned to the husband’s care in compliance with the orders I make. The Hague Convention will ensure T’s eventual return if the wife fails to comply with my orders. It is much more probable than not that she will comply with the orders I make. I am satisfied she really wishes to live on the Sunshine Coast in preference to the United States.

6. As he has obviously given careful thought to what he wants and has considered and reflected upon other alternative and as he has shown he is capable of making sensible decisions about his future and is of an age when his wishes should be given considerable weight, I am of the view that the essentials of what T told Dr F he wants should be ordered. He should spend most of each school term with the husband and most of the school holidays with the wife. This way he will be able to balance the need he has for the wife with his need to spend time with the husband in surroundings where he is comfortable. He will be given better prospects of seeing more of his mother too. At Christmas the wife should be able to take T to the United States in 2009/10 and 2011/12. For that purpose, she should have a greater share of Christmas with him in those holiday periods whether or not she lives in Queensland. Otherwise, if the wife lives in Sydney, he should live principally with her and see the husband at the times he has already requested and spend half the balance of the school holidays with each parent.

7. These orders best achieve the contact which T needs whether or not the wife relocates. They accord with T’s own expressed wishes. I have considered the prospect of T spending four weekends each school term in Queensland with the wife if she lives there but conclude it would be too tiring and disruptive for T and contrary to his wishes. Although I am aware that the mother is going to be worse off financially than the father if she decides to live in Queensland, because it is a decision that she will have made notwithstanding the cost of T’s transport and its consequences, I am of the view the parties should share the cost of air transport equally.

8. The orders I propose may seem to unfairly deprive him of Christmas time with the husband. However, I am quite satisfied, despite the dearth of evidence on the issue, that the benefit T is likely to gain from spending Christmas with the wife especially if it is with her family in such a different environment as the United States is to Sydney is likely to well outweigh the disadvantage he will suffer from not spending much of the relevant Christmases in Sydney with the husband. After all, this will only involve a few years. After that, he will be 18 and will do as he chooses.  

9. I shall make orders which accord with the above.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date: