Gladstone and Aitken

FEDERAL CIRCUIT COURT OF AUSTRALIA

GLADSTONE & AITKEN

[2014] FCCA 475

Catchwords:
FAMILY LAW – Relocation – infant child – providing for development and maintaining relationship between child and father – mother is unchallenged primary parent – support networks for the mother.

Legislation:

Family Law Act 1975

Federal Circuit Court Act 1999

Federal Circuit Court Rules 2001

MRR v GR (2010) 240 CLR 461
McCall & Clark (2009) FLC 93-405
Champness & Hanson [2009] FamCAFC 96

Applicant:

MS GLADSTONE

Respondent:

MR AITKEN

File Number:

MLC 9995 of 2013

Judgment of:

Judge McGuire

Hearing dates:

11 & 12 March 2014

Date of Last Submission:

11 & 12 March 2014

Delivered at:

Melbourne

Delivered on:

4 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr Pavone

Solicitors for the Applicant:

Warren Graham & Murphy Lawyers

Counsel for the Respondent:

Mr Puckey

Solicitors for the Respondent:

Mulligan & Associates

ORDERS

That all extant orders in respect of the child X born (omitted) 2013 (“X”) be discharged.
That the parents have equal shared parental responsibility for X.
That X live with the mother and she be permitted to relocate his principal place of residence to (omitted) in Victoria.
That X spend time and communicate with the father as follows:
(a)On a four weekly cycle:
(i)For two consecutive weekends in Melbourne with the mother to bring X to Melbourne and on each of the Saturday and Sunday for two periods on each day of a minimum of two hours for each period with the actual times to be agreed between the parties with reference to X’s feeding and sleeping needs;
(ii)On the Mondays, Wednesdays, and Thursdays between the two weekends of the week referred to in order 4(a)(i) above such time to commence at the father’s discretion from 4.30pm and to conclude at 6.30pm provided that should the father be unable to exercise such time on any particular day then he notify the mother not later than 3.00pm on such day or days.
(iii)On the fourth weekend in the cycle in (omitted) on each of the Saturday and Sunday for two periods each of two hours on each day such times to be agreed between the parties but with reference to X’s sleeping and feeding needs;
(iv)Such further or other times as the parties may agree from time to time.
That in about February 2015 the parties attend mediation with Relationships Australia or similar organisation, such to be arranged at the discretion of the father and any costs to be shared equally between the parties, with a view to increasing and progressing X’s time with his father.

NOTATION

A. The Court notes that the mother is able to and will provide accommodation for the father on his weekends in (omitted).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9995 of 2013

MS GLADSTONE

Applicant

And

MR AITKEN

Respondent

REASONS FOR JUDGMENT

These proceedings concern the one child of the parties, X, born (omitted) 2013 (aged just 7 months).
Although the father was the applicant commencing proceedings, it is the mother who wishes to relocate with X to live in (omitted), which is a small town in the (omitted) region of Victoria. The father opposes the application. He does concede, however, that the mother remains the primary parent for X but that she live in the general Melbourne metropolitan area.
The orders sought by each of the parties varied during the course of the trial. As I understand the mother’s proposal now, it is:
a)that the parents have equal shared parental responsibility for X;
b)that X live with the mother;
c)that the mother be permitted to live with X in (omitted);
d)that X spend time and communicate with the father as follows:
i)in Melbourne on two consecutive weekends with the mother bringing X to Melbourne on a Friday and staying with him until the following Monday week. Time between X and the father is to take place for two hours on each of the Saturdays and the Sundays;
ii)for a period of two hours on the Wednesday between the abovementioned two weekends;
iii)on another weekend in (omitted) for two hours on each of the Saturday and the Sunday;
iv)there to be no time on the fourth weekend of the four-week cycle.
The mother proposes that time for X with the father increases as he meets his milestones and to include special days.
The mother proposes that X’s time with the father initially be professionally supervised and she baulks at the paternal grandparents or either of them being the supervisor.
The father by the end of the evidence has moved to a position where he proposes the following:
a)that the parents have equal shared parental responsibility for X;
b)that X live with the mother;
c)that X spend time with the father on the Saturday and the Sunday of each weekend;
d)that X spend time with the father on three out of each four Wednesday evenings;
e)that the mother be permitted to travel with X to (omitted) on each fourth week between the Monday and the Friday, thereby allowing for continuing weekend time between the child and father but with the father relinquishing each fourth Wednesday.
Both parties heed the advice of the family reporter, Dr K, that they enlist the assistance of a psychologist experienced in parenting education such as Ms L.
The mother’s case is that she has no support network in Melbourne but has her parents and established friendships in (omitted). She says that there are financial advantages for her living with X in (omitted), where her parents are able to provide her with rent-free accommodation. The mother argues that a move to (omitted) will remove her from the element of control that she experienced or that she perceived to have experienced from the father, with the implication that she will be more comfortable in her parenting of X. She says that the proposals of the parties in the sense of actual time, do not significantly differ and that X’s relationship with the father can be established and maintained on the mother’s proposal.
The father concedes that he has not yet bonded with X. He also concedes that he does not yet have the skills and experience to comfortably establish such a relationship with X. The father argues that the mother’s proposal is not sustainable in the long term in that the travel would be onerous and inconsistent with her desire to relocate and settle in (omitted) and that the travel for X and the parties not reasonably practicable into the future. He says that he will provide the mother with use of the former jointly owned unit at (omitted) at a below-market rental. The father does not accept either that the mother has no support networks in Melbourne and noting that her brother lives in (omitted) or that she has actual support networks in (omitted) over and above her parents who in any event, have shown a capacity to provide her with support in Melbourne.
The father is 41 years of age. He is employed as a (occupation omitted). There is no evidence that he has re-partnered. He says that he has an anticipated salary package of approximately $70,000 per annum. He is assessed to pay child support at the rate of about $400 per month.
The mother is 28 years of age. She has not re-partnered. She has some tertiary qualifications in the (omitted) industry. She is currently on maternity leave from her most recent employment and until July 2015.
The parents commenced living together in February 2009. They separated on 17 September 2013 when X was just three weeks old and apparently after an argument between them when the mother was still in hospital. Given that the father volunteered some evidence in the witness box as to the possibility of a reconciliation and there are some statements to this effect made by the mother to the family reporter, I inquired of the parties through their counsel as to whether a consideration of section 13B of the Family Law Act should be activated. The mother instructed her counsel that she believed the relationship to be irretrievably broken down and hence I determined not to adjourn these proceedings.

The Evidence

Both parties relied on two affidavits and were cross-examined. They each adduced evidence in affidavit form from one of their parents and who was not required for cross-examination.
The Court had the real benefit of a comprehensive family report prepared by Dr K dated 17 February 2014. Dr K gave evidence and was cross-examined.

The Relevant Law

As made clear to each of the parties when they were giving their evidence and whilst not being dismissive of the parents’ own personal desires and needs, I am obliged to make orders which have X’s best interests as my paramount consideration.[1]
[1] Family Law Act 1975 (“The Act”) at section 60CA
Importantly, the Family Law Act itself is silent as to the notion of relocation. As such, there is no discreet treatment of relocation in the legislation. To the contrary, I am to make orders which on balance, attend to the best interests of X and a parent’s proposal to relocate is just one among numerous considerations which I must address.
In determining X’s best interests, I am to follow a statutory and intellectual course of consideration starting with the rebuttable presumption of “equal shared parental responsibility”.[2] Parental responsibility refers to the rights and obligations that generally are held by parents in respect of children and usually are manifested in decision-making in respect of long term matters such as education, religion, medical procedure and the like. The presumption of equal shared parental responsibility does not apply if the Court is satisfied that there are issues of family violence. Such issues are not argued here although the mother broadly raises the issue of her feeling controlled by the father and this matter is also considered by Dr K. Alternatively, the presumption is rebutted if there evidence to convince a court that such an order is not in the child’s best interests. Significantly, each of the parents here seek an order for equal shared parental responsibility.
[2] Section 61DA of the Act.
If the presumption applies and is not rebutted then I must move to consider whether two distinct parenting regimes are both in X’s best interests and reasonably practicable.[3] Firstly, I am to consider whether X spending equal time between his parents is in his best interests and reasonably practicable. Given his age and the father’s concessions as to his lack of experience and skills, such an option was understandably not left to me.
[3] MRR v GR (2010) 240 CLR 461
That being the case, I then turn to consider whether X spending “substantial and significant” time between his parents is both in his best interests and reasonably practicable. This concept moves away from the old notion of “access” being limited to weekends and school holidays and accommodates children and parents enjoying mutual activities and for both parents being involved in and accepting proper responsibility for the care of children.
The findings as to the best interests of X, therefore, are at the crux of my determination. I make such findings by addressing the probative evidence and the proposals of the parties to section 60B of the Act together with the mandatory considerations under section 60CC.
Section 60B provides the objects and principles of the relevant legislation in the following terms:
(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).
Whilst section 60B provides a framework for the process which I am obliged to undertake, the considerations under section 60CC of the Act are more evidence based with each being addressed and weight attributed accordingly. The section 60CC considerations are divided firstly into two primary considerations which are:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations under section 60CC(3) address matters such as the views of the child, if any; the capacity of the parents; the attitudes of the parents to the responsibilities of parenthood; the practical implications of the parties’ proposals; and matters of family violence.
There are two limbs to my determination. The second is that I must be satisfied that the orders I propose to make are “reasonably practicable”. The Act gives me some assistance[4] in this respect in defining the term as:
[4] Section 65DAA(5) of the Act
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.
Superior courts have historically attempted to compile a list of principles applicable in parenting matters involving the potential relocation of the child. Significant amendments to the Act in 2006 enlivened judicial and academic debate as to the continuing validity of those principles and the effect of the amendments on the prospects of relocation generally. A reading of the post-amendment authorities suggests that the principles generally remain valid and can be summarised as follows:
a)that neither the parent carries an onus of “proving” either for or against a relocation and the child’s best interests remains the paramount but not the sole consideration, but must be addressed within the context of section 65DAA of the Act;
b)that a parent wishing to relocate with a child does not need to demonstrate “compelling” reasons for the relocation;
c)that the trial judge must consider the benefits and detriments of the proposals of each of the parties and may himself or herself be required to formulate independent proposals in the child’s best interests; and
d)the Court is to consider a parent’s right of freedom of movement, but such right must defer to the child’s best interests.

The Family Report

Dr K recommends against X’s relocation with the mother to (omitted). At paragraph 60 and under the heading “Recommendations”, he says:
Relocation of the mother and the child, X to (omitted) in this matter would inevitably significantly alter the quality of the relationship between the child and the father, at a critical point in the child’s development and in the relationship between the child and the father.
Dr K then particularises the rationale for this conclusion, including:
·    If relocation was to occur, it is unlikely that anything more than fortnightly time between the child and father would occur, with one trip being negotiated by the father to (omitted) on a fortnightly basis and one trip negotiated by the mother to Melbourne on a fortnightly basis;
·    the attachment between the father and the child, which is yet to be established, is unlikely to develop fully;
·    the lack of attachment with the father is likely to have negative effects on the child from a developmental perspective, affect adult relationships and functioning, and affect identity formation. Lack of bonding in the father for the child would affect the relationship for the child;
·    the relocation is likely to prolong the conflict and lack of cooperation, evidenced by the family court conflict, between the parents. These factors predict a negative outcome for the child with respect to mental health functioning;
·    relocation is not required to ensure sound maternal functioning in this matter;
·    maternal supports are readily available in Melbourne, and the mother could equally have family stay and assist her over time. Other non-family supports would evolve naturalistically over time;
·    the mother has previously lived in Melbourne for a decade, remaining in Melbourne would not necessarily compromise her mental health functioning, or ability to cope as a parent significantly. She has sound family support, and periods of time returning to (omitted) and having connections with the family could inevitably occur;
·    there appears to be the possibility of the mother remaining in the family unit as part of the Family Court settlement, increasing stability factors for her;
·    over time, assuming parental cooperation, shared parenting responsibility would reduce the parental stress on the mother;
·    the parents’ likely ability to cooperate over time is sound, and intervention is likely to be effective in this matter; and finally
·    relocation for the mother is likely to limit her occupational and social options, which, considering her history, will be potentially problematic when X becomes somewhat less dependent.
I note that Dr K’s report was prepared from interviews conducted before the property settlement between the parties. That settlement has in fact seen the husband retain the unit at (omitted) with a cash settlement on the wife. The husband does however, provide an option whereby the wife becomes his tenant in the property at a rental of $275 per week.
Dr K’s report was also prepared at the time when the mother’s proposal was simply that time between the father and X take place on each second weekend with the mother travelling to Melbourne monthly and the father travelling to (omitted) monthly. The mother’s position has changed significantly since then with a proposal that would allow X time with the father on three weekends out of each four together with the opportunity for some weekday time.
Dr K’s report and his evidence in Court corroborates to a degree the mother’s evidence that she has felt “controlled” by the father and his personality. At paragraph 58(2) Dr K observes:
Psychological evaluation identified some history of depressive difficulties, however, psychometric evaluation identified relatively sound personality functioning, with high levels of sensitivity and empathy, although this sensitivity also makes her vulnerable to interpersonal conflict and vulnerable to being over-accommodating. It would appear that this has been a central factor in the dynamics in their relationship, with her being accommodating and the father being forceful in his views, and this has led to polarisation of their individual vulnerabilities.
The mother presents as most likely to support the relationship with the father, although responds negatively to the father’s attempts to control the parenting circumstances. Her concerns regarding the father’s care appear to be genuine rather than feigned.

And at paragraph 59 in respect of the father, Dr K opines:
The father tends to hold positions regarding the world that do not necessarily accommodate the views of others.
He presents a picture of a person who believes he is right even when there is evidence otherwise.
Personality evaluation, including psychometric evaluation, identified a vulnerability to narcissistic personality functioning, with a need for external approval and interpersonal control …
The tendency for the father is that he would attempt to control the mother’s life, although I note that there are no obvious anti-social tendencies with the father. In time, there is the possibility that he would establish a more workable relationship with the mother, although this is likely to depend on whether he can become less egocentric in this negotiation.
The father’s intentions regarding X appear to be sound, although he presents with a rather rigid set of views about X in the future, factors which may hamper cooperation between himself and the mother.

Section 60CC Factors

Primary Considerations

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

The parties and Dr K all agree that the father’s relationship with X is not yet established or attached. This is not unusual given the child’s young age and the fact that the parties separated when he was just one month old causing limited time since between child and father. There is also the father’s concession as to his lack of experience and skill as a parent. Dr K says and professionals generally agree, that attachment and a successful parent-child relationship is assisted for very young children by way of frequency and regularity of direct contact albeit usually for short periods. Dr K’s recommendation against relocation by the mother and X is based to a large degree on these concerns of attachment within the context of the mother’s then proposal which would limit the contact between the child and the father to fortnightly weekends for only a couple of hours on each day. The father proffers the same argument, albeit now armed with the amended proposals of the mother.
The Full Court in McCall & Clark[5] considered the term “meaningful relationship” as it appears in the legislation and concluded that it involved both a “prospective approach” and “qualitative rather than quantitative” aspects of relationships. That is, a court must look to the future relationship between child and parent when formulating orders which assist that relationship being meaningful, significant, beneficial, and successful. In doing so, however, it is obviously necessary to consider the current nature of any relationship and including particular characteristics and needs of both child and parent. Meaningful relationships flourish on the quality of the time spent rather than simply quantity in the sense of days and hours. There is obviously, therefore, a direct relevance and impact of a proposal to relocate a child and particularly, a young child where frequency and regularity of time can become problematic and hence impact on the establishment and maintenance of a relationship.
[5] (2009) FLC 93-405
Nevertheless, whilst the consideration of assisting and maintaining a meaningful relationship for a child and a parent is a “primary” consideration, it has no statutory priority of importance over any of the other mandatory considerations for the Court and is just one of those numerous considerations which must be attributed to weight and balanced on the basis of the probative evidence and the proposals of the parties in ultimately determining the best interests of the child. This was noted and confirmed by the Full Court in Champness & Hanson[6] in observing:
The submissions of Counsel for the father also appeared, at times, to be based on an assumption that it was obligatory for the trial Judge to make Orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make Orders most likely to promote the child’s best interests. In seeking to achieve that objective, S60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.

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

[6] [2009] FamCAFC 96 at 103

Such issues do not feature in the matter before me.

Additional Considerations

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

X is an infant.

Section 60CC(3)(b) – the nature of the relationship of X with each of his parents and other persons (including grandparents or other relatives)

X’s primary attachment is with his mother. She is his acknowledged primary carer. It is she who provides his nurturing and comfort.
The relationship between X and his father is not yet an established one. There has been limited and short periods of time thus far to allow such a relationship to establish. Both parties and the family reporter agree that Mr Aitken needs to develop skills and confidence in his parenting relationship with X. The mother says that this can occur on her proposal. The father doubts whether the mother’s proposal provides adequate frequency of contact between himself and X to allow for the establishment of such a relationship. Dr K was pessimistic in respect of the benefits for the father-son relationship on the mother’s initial proposal. When giving evidence in court, he saw her amended proposal as an improvement in this regard. It was put to him in cross-examination that there was only arguably, six hours difference per month on the proposals of the mother and the father and his comment was sought on the impact if any on X bonding with the father. Dr K’s response was whilst not evasive, one which referenced the concept of relocation in the longer term rather than directly addressing the question. That response was:
The problem is in the future. That is when the relocation would have the most impact.
It seems clear on the evidence before me from Dr K and generally in respect of social science on the subject that young children benefit by frequency of time with a parent in order to establish a bond rather than any emphasis being on the length of such periods together with the observation that longer gaps should be avoided. In this sense, Dr K, when confronted with the proposals of both parents that X would be spending some Wednesday night time with his father (albeit not each week) responded that ideally “two or three times during the week would be preferable”. This evidence of Dr K was not pursued by counsel for either party in their cross-examination of Dr K but does, of course, remain available for my consideration in that I am not limited to a choice between the options offered to me by the parents.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

Upon separation and when X was only weeks old, the mother unilaterally relocated with him from Melbourne to (omitted). She subsequently returned with X to Melbourne but only after an application had been filed, thereby causing some months of difficulty in the frequency of the relationship between X and the father.
Counsel for the mother argues that the mother, despite the unilateral relocation, was a frequent visitor to Melbourne during those months and I should therefore be satisfied that she would facilitate and encourage X’s relationship with the father. Dr K appears satisfied that the mother would not act contrary to her obligation to assist that relationship. He suggests some psychological reaction in both her initial unilateral relocation and her continuing quest to relocate with Court sanction.
Although the mother’s actions in 2013 are difficult to condone on any view of the evidence and from the viewpoint of X’s best interests, it does seem that she continued to travel regularly between (omitted) and Melbourne. Considering her evidence as a whole and after having had to benefit of seeing her give evidence in Court, I am satisfied that this mother does not harbour sinister motives in her proposal to relocate with X and that she would genuinely foster and facilitate the child’s relationship with the father.
The father was criticised in cross-examination and in the mother’s counsel’s final submissions for his failure to take up opportunities available to him during the period in 2013 following the mother’s relocation. Essentially he was being asked to travel for 10 hours to spend an hour or two at most with his son and against a background where the child had been relocated without his consultation or consent. I find such criticism specifically in that respect to be unjustified.
Other criticisms have been levelled at the father in respect of him rejecting the mother’s proposal which would have him travelling to (omitted) for one weekend per month. Again, the time available in the early stages would be limited to a few hours. Nevertheless, the father’s responses in cross-examination were enlightening as to his attitude generally. He rejected the option of travelling to (omitted) on the basis of inconvenience in respect of his other lifestyle preferences and relationships. I do not, however, proceed to find negatively against the father in this regard which echo some of Dr K’s observations as to the particular personality of Mr Aitken.

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;

X currently lives in the interim in Melbourne with his mother. He sees his father on weekends and on Wednesday evenings. The father’s proposal lessens this by one Wednesday on a four weekly cycle. The mother’s proposal on her argument, lessens the current regime by six hours. The issue for the court is the impact, if any, on the child and his relationships of these proposals.

Section 60CC(3)(e) - The practical difficulty and expense of X spending time with and communicating with his father 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.

The evidence before me suggests the distance between Melbourne and (omitted) to be approximately 380 kilometres. The driving time would reasonably approximate five hours. Each party’s current proposal would see one return trip for X between (omitted) and Melbourne in each four week cycle. The significant difference between the proposals is that the mother suggests that the father travel himself from Melbourne to (omitted) for one weekend in each four. This would obligate the father for up to 10 hours travel over a weekend. Whilst the mother offers some accommodation, the practical aspects for the father of spending time with an infant son in a relatively distant regional town are worthy of consideration.
The mother’s proposal also sees her travelling from (omitted) to Melbourne for a block period of nine days each month. She would travel on a Friday afternoon or evening and return to (omitted) on the following Monday week thereby accommodating two weekends and one Wednesday for X with his father. The mother has accommodation options in Melbourne with her brother or a friend. The issue for the court is the durability in the long term and the practicality of such a proposal seen against the mother’s evidence that she wishes to settle herself and X in the country environment of (omitted) and that she anticipates obtaining part-time employment. The court must, I emphasise, consider the various proposals not just as to the child’s best interest but also as to reasonable practicality. It is proper to make this latter consideration into the longer term.
Section 60CC(3)(f) - the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
The capacity for the mother to be the primary parent for X is acknowledged and unchallenged. The issue for the court is whether that capacity is compromised by her being required to live in Melbourne. The mother says that she is lonely in Melbourne and that the current support from her parents is not available long term whereas she has available and familiar support networks in (omitted). The father argues that the mother has lived in Melbourne for 10 years and that in any event, she can continue to receive support from her parents who have shown their generosity in this respect and on his proposal, the mother can travel to (omitted) for blocks of five days each month. The father does not concede the mother’s lack of available support networks in Melbourne. He notes that she has been in regular employment and studied at various tertiary institutions and has lived in Melbourne now for many years. The mother counters this argument by saying that the nature of her relationship with the father and his own particular personality did not allow or encourage her to be social over the last few years. She was cross-examined extensively in this respect and did not weaken in her resolve that there were no strong or available support networks for her in Melbourne. The mother’s brother lives in (omitted). He is married without children. He works shift work.
Dr K notes that the mother has a history of some depression which was apparently addressed with assistance and medication. He noted the mother’s own concerns about her potential vulnerability and observes her personality as “unassuming, assertive, accommodating and sometimes naïve.” As to Dr K’s psychological evaluation, he reports at paragraph 26:
Psychological evaluation showed no evidence of personality disorder, some vulnerability to a lack of assertion and sensitivity to conflict, and a past Adjustment disorder with depressed mood at age 21 years. The marital dynamics and conflict raised anxiety that her depressive symptoms may return, triggering, in part, her decision to separate.
Dr K concludes at paragraph 60 and in respect of the mother:
Relocation is not required to ensure sound maternal functioning in this matter.
The mother has previously lived in Melbourne for a decade, remaining in Melbourne would not necessarily compromise her mental health, functioning, or ability to cope as a parent significantly. She has found family support, in periods of time, returning to (omitted) and having connections with the family could inevitably occur.
Dr K essentially confirmed the mother’s reporting of the father’s personality traits, including a tendency toward controlling behaviour. Such corroboration assumes some importance within the context of the mother’s rationale for relocating to (omitted) being in part, the availability of supports for her personally and in her parenting role. In this respect Dr K reports of the mother at page 8:
Subsequently, Mr Aitken took two weeks paternity leave however her account is that in that time “he treated me like a dog”. She reported that he went out celebrating with friends, going to work or being nasty to her. She reported that if he was doing things incorrectly with X, she was unable to tell him how to do it differently or better. She felt that he would adjust. She arranged for her family to come down three weeks after the birth. Her account was that her husband did not like the family there and he called the maternal and child health nurse and said that X was being harmed and stressed and that her family was not welcome. Her account was that she needed assistance with the baby. He confronted her parents and said that they were not his family and said that she was weak and pathetic for needing her mother and father at this time, reported that he was thinking about leaving her.
Dr K confirmed that X and the father are not yet attached and commented at page 31 of his report:
Father presents with X as engaged but anxious, lacking confidence and experience, and appears overly controlling.
He appears uncertain in reading distress signs – e.g. hungry, tired, etc. And doesn’t use standard comforting methods – e.g. face-to-face comfort, et cetera.
Father makes incorrect assumptions about parenting knowledge.
A second issue in respect of the “capacity” is whether the father’s capacity to care for X and allow him the necessary experience to gain proper skills will be permitted and enhanced on the mother’s proposal?

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

The main reference here is the child’s young age and the need to bond with his parents. Frequency of contact remains the crucial element. A teenager with a strong attachment to a parent may well endure a distant relocation so long as alternatives of communication and options of some direct contact are maintained. On the other hand, an infant, whether or not attached, will require a frequency of direct contact in order to maintain and attachment where use of media is of minimal or nil value.

Section 60CC(3)(h) - if the child is Aboriginal or Torres Strait Islander – not relevant.

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

The mother’s attitude and responsibility towards X and her parental responsibilities were compromised by her decision to move herself and the child from Melbourne to (omitted) shortly after X’s birth. The court is asked to consider whether this act was indicative of her potential future behaviour and generally of her attitude to X’s needs and her obligation is to foster a relationship between X and his father?
The mother has otherwise taken on virtually all of the responsibilities for the parenting of X given the father’s conceded inadequacies.
The father’s attitude to the responsibilities of parenthood are on the evidence connected to his personality. Dr K’s observations of the father are set out above. My observations of him in the witness box were similar. There appeared to be a certain detachment and an ability and a sense of “parent as of right” in some of his evidence. His responses to the suggestion that he might travel to (omitted) on one weekend a month were lame and without merit. He consented to interim orders which would allow him time with X each Wednesday between 4 pm and 6 pm but he has rarely on the evidence taken up all of this available time and regularly arrives at 5.30 pm or later. I accept that he may have work commitments but wonder as to his ability to organise and prioritise his responsibilities to X in his otherwise busy schedule. The apparent lack of empathy to the mother’s concerns in this regard were equally enlightening as to Mr Aitken’s attitude and offer some corroboration of the mother’s perception of being “controlled” as both she and Dr K proffer in their evidence.

Section 60CC(3)(j) - any family violence involving the child or a member of the child's family – not relevant.

Section 60CC(3)(k) - if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following – 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.

The task for judges dealing with Family Law matters as opposed to those in some other jurisdictions is made more difficult by reason of the orders being proscriptive in their nature and effect. The court must make orders which are in a child’s best interests in both the short and long term future. Where circumstances are dictating inevitable changes for parents and children, such a task is even more onerous. These courts are often called upon to adjudicate in respect of discreet (but often important) issues such as the distribution of days between parents in a week or fortnight where the result might not have any actual effect on the child’s relationship with each parent. Matters involving relocation however cannot be so discreet. If the court is to permit a relocation of child and primary parent then it must usually be satisfied on the balance of probabilities that the parent and child will settle into the new environment successfully and that the child’s relationship with the remaining parent will be maintained successfully. Any failure here will often lead to further litigation. Conversely, if the relocation is not permitted the primary parent will remain, often unhappily and in a non-preferred location and environment. If such unhappiness degenerates to impact on their parenting then further litigation might result. It follows then that it is incumbent upon good and responsible parents to understand and accept that the task for courts is to make orders that have the child’s best interests as a paramount consideration. Parents should understand that courts do not aim at optimum or ideal orders but rather to formulate orders that are in the best interests of children within the imperfect recipe of the circumstances provided. Against such a background, parents should move forward with the platform provided by orders so as to parent cooperatively and thus avoid further litigation for their child or children which almost by definition is prima facie contrary to their interests.

Conclusions and findings

I am satisfied that the mother is the unchallenged primary carer of X and that she has a bona fide desire and preference to live with X in (omitted). I am satisfied that she genuinely wishes and intends to promote and assist the relationship between X and Mr Aitken. I am satisfied that she has family support networks available to her in (omitted) that would not be available in the long term for her in Melbourne and mainly in the form of her parents. I find no evidence of malice towards the father and his relationship with X in the mother’s proposals to relocate.
I am satisfied that the relationship between X and Mr Aitken is not yet established and attachments and bonds have not yet formed. I am satisfied in accordance with the particular and general expert evidence before these courts, that the establishment and maintenance of the relationship between the infant X and his father is best served by frequency of direct contact albeit often for shorter periods of time.
On consideration, I am satisfied that the proposals of each of the parents are reasonably practicable albeit with both carrying some degree of inconvenience. Each proposal effectively involves one return trip for X between Melbourne and (omitted) or vice versa but with a number of days between the first travel and the return journey. The mother’s proposal which would involve her spending a block of about nine days in Melbourne, is made reasonably practicable by her available accommodation with her brother. I am unable to make findings as to the effect of the mother’s proposal on her own ambitions for employment in (omitted) but note that those plans extend only to part-time employment and in any event, she might reasonably expected to devote her time and efforts in the short term to the care of X. Her proposal involves the father travelling on one weekend in each four-week cycle to (omitted). It is a journey of some distance but I can take notice of the fact that in 21^st century Australia there are parents making similar efforts to see their children all over this country and often more regularly than one weekend out of four and in this sense I do not see the mother’s proposal as being prohibitive of X reasonably spending time with his father. Further, I emphasise that I am not bound by the proposals of the parties and it may be that if the father is prepared to make the effort to travel, a time for him with X could reasonably be more lengthy than the couple of hours proposed by the mother. I am evidentiary-bound in this respect only by the child’s age and the acknowledged difficulties exposed by the father’s inexperience.
Similarly, the father’s proposal is a reasonably practicable one. The mother would be obliged to obtain accommodation and he offers her at least a short-term option as his tenant in the apartment they previously jointly shared and owned. She would then be required to pay rent but reasonably has employment available to her in the longer term by reason of her skills and experience and the fact that she is actually on maternity leave from her current employment. Further, the father’s proposal would allow the mother to travel on each four-week cycle to (omitted) with X for a block period of about five days.
The mother’s proposal presents both advantages and disadvantages for X. The mother’s right of her freedom of movement is accommodated by her living in (omitted). I repeat, however, that such a right must defer to or at least be consistent with X’s best interests. Nevertheless, it is reasonable to infer some vicarious advantages for X if his primary parent is happy, content and comfortable in her own life and parenting environment. The mother’s proposal provides her with a more available and consistent support network in her role as that primary parent of an infant child. Similarly, there are some real financial advantages for the mother and hence for X’s support on the mother’s proposal. Her rental in Melbourne would be a minimum of $275 per week which must be seen within the context of her reliance upon Centrelink benefits for the immediate future and the contribution of financial support by the father being reasonable but limited to an assessment on his income.
The disadvantages of the mother’s proposal include Wednesday time being unavailable between X and the father for three weeks out of each four. It also provides a degree of instability in that the mother would be travelling to Melbourne and staying with X for nine days out of each 28-day period thereby arguably negating the very benefits of the relocation she argues. The ability of X to settle into such a routine which the father says amounts to a disrupted routine is not known. A disadvantage of the mother’s proposal is that it requires the father himself to travel each fourth weekend to (omitted). He has no independent support or accommodation in (omitted) although the mother offers some accommodation through her family. This proposal is arguably onerous on the father in that he works five days per week as a (occupation omitted) together with some (omitted) work on weekends. Such a proposal would see the father attempting to engage and attach with his infant son in an unfamiliar environment as opposed to his own home with its comforts and supports.
On consideration and a balance of the benefits and detriments of the parties’ proposals, I conclude that X’s best interests are served by the mother being able to relocate with him to live in (omitted). In saying this I am satisfied that X’s relationship with the father can be established and maintained on the mother’s proposal. I do, however, consider that it should be open for the father to spend longer periods of time with X on the Saturday and Sunday of his weekend in (omitted) each month. I am mindful that X is very young and has requirements for breastfeeding and sleeping. Nevertheless, these contingencies can be accommodated with the father spending longer periods with X punctuated by his need for sleep and feeding. Similarly, I see no reason why the father’s time with X should be limited to the Wednesday during the mother’s week in Melbourne. In my view it is open for the father regardless of his work commitments, to spend short visits with X on say the Monday, Wednesday and Friday evenings. Whilst I am aware of the importance of a routine for young children, the establishment of an attachment and bond between X and his father is of crucial importance and some leeway should be given to Mr Aitken in this respect and in relation to his employment obligations.
I place some weight on the financial benefits to the mother in not having to pay for accommodation in (omitted). The saving would be at least $275 per week and probably substantially more if she was to obtain accommodation for herself and X in Melbourne independent of the father’s apartment which would be her preference. She has no accommodation costs in (omitted) and this must be seen against her limited income.
I also placed some real weight on the mother’s freedom of movement in her role as primary parent of X within the particular platform of this matter. I am not satisfied that X’s best interests and in particular his relationship with his father suffer by reason of the mother’s relocation to (omitted). It is important for courts when dealing with situations such as this now before me to consider the difference between mere inconvenience to parents as against proposals which are prohibitive in their effect on relationships. To my mind, the mother’s proposal causes some inconvenience to the father and indeed to the mother. The benefits set out above in my view outweigh those inconveniences. Frequently and regularity of direct contact between father and son can still be accommodated on the mother’s proposal.
I note the recommendations in the family report prepared by Dr K. Importantly, however, Dr K’s report was prepared at a time when each party’s proposal was more limited and perhaps self-interested in their motivations. To their credit, each parent had moved significantly and in my opinion, become more child focused in their proposals by the commencement of the trial and even more so by the end of the evidence. Consequently, I am satisfied that Dr K’s concerns as to frequency of time for X with the father are now adequately addressed on either party’s proposal and both of which I have found above to be reasonably practicable. I also note Dr K’s opinion that the mother “appears ambivalent about” the proposal to relocate and at paragraph 58 of his report:
It is possible that the mother’s proposal for relocation relates to psychological reaction to the end of the relationship and the confusion associated with the separation, rather than a well-established desire to alter her life in that direction.
Having had the benefit of seeing and hearing Ms Gladstone give her evidence and including cross-examination in court, I respectfully differ from Dr K. I am satisfied that the mother has exhibited a consistent and bona fide desire to relocate and that she has articulated sound reasons for doing so as set out above.
Other conclusions of Dr K, however, do assist me in reaching my determination. I place some weight on the mother’s freedom of movement and desire to relocate on the presentation and personality of Mr Aitken observed by Dr K and consistent with my observations of him and including at paragraph 34 of the report:
Overall, Mr Aitken presents with a rather entitled position. There were aspects of his account where his focus was singularly on himself, with a need to see his actions and talents entirely in a positive light. He presented as having little understanding of X as a separate entity or child development and made false assumptions that he had very sound understanding of and sound interaction with X.
Further at page 24 Dr K opines:
He (Mr Aitken) presents with personality rigidity, difficulty with empathy for others’ experiences, a somewhat grandiose view of himself and his values, little ability to take the perspective of others, high need for external approval. Overall it is possible that what appears to be difficulties with narcissistic personality features may be driven by a sense of insecurity, with little obvious ability to reflect on his own vulnerabilities.
Accepting Dr K’s professional observations as to the parties’ personalities, I am able to conclude that these parents will have some difficulty in cooperatively parenting X. The mother alleges feelings of being controlled by the father and such is consistent with Dr K’s observations. In my view, therefore, the mother’s role as the primary parent of this infant child and issues of her comfort and freedom of movement assume real importance and it is such that I give real weight.
Counsel for both parties made submissions that the parents would benefit by ongoing counselling and a Ms L was suggested. I understand that Dr K shares these views and also recommends Ms L. Whilst frequency of counselling would ultimately be the province of the therapist, I see no reason why such counselling could not be accommodated during the mother’s time in Melbourne each fourth week.
Consequently, I intend to order that X live with the mother and that she be permitted to relocate his primary residence to (omitted). There is no issue agitated before me in respect of parental responsibility and despite my observations of the parties’ difficult personal relationship, they present as intelligent and capable individuals who should be able to discharge the obligations of equal shared parental responsibility albeit perhaps with some professional assistance from Ms L.
I propose to order that X spend time with the father in accordance with the mother’s proposals generally but that time during the mother’s week in Melbourne take place on the Monday, Wednesday and Thursday evenings. Such time for the father should be available until a minimum of 6.30 pm but this time will obviously become later as X matures. The mother says that she will encourage and facilitate X’s time and relationship with the father and this may require some adapting and flexibility on the part of both herself and X. Similarly, I see no reason why the father’s time with X each fourth weekend in (omitted) should be limited to the two hours argued by the mother. Whilst there will need to be some communication and flexibility between the parties, I propose that X spend a minimum of two periods each of two hours on each of the Saturday and the Sunday with his father on those weekends allowing for feeding and sleep requirements. This will inevitably require some communication and objectivity between the parents but I am confident that this can and will occur.
X is an infant and hence the time for him with his father is limited by his needs. Such time will, however, increase and develop as X matures. It is hoped that these orders provide the parents with a platform from which they can move forward without the need for further litigation. As such I intend to order that they attend mediation in and from about February 2015.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 4 April 2014

[2014] FCCA 475

4 April 2014

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