Gulcan & Petroni
[2024] FedCFamC2F 1314
•24 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gulcan & Petroni [2024] FedCFamC2F 1314
File number: MLC 3824 of 2022 Judgment of: JUDGE BOYMAL Date of judgment: 24 September 2024 Catchwords: FAMILY LAW – Parenting – relocation – young child – mother seeks to move from Melbourne to Sydney with the child – father seeks that the child remains living in Melbourne and time progress to an equal shared care arrangement – orders made providing for child to live in Sydney with the mother Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC
Cases cited: Asher & Wilkinson [2020] FamCAFC 44
AMS v AIF (1999) CLR 160
Bielen & Kozma [2022] FedCFamC1A 221
Franklyn & Franklyn [2019] FamCAFC 256
Grella & Jamieson [2017] FamCAFC 21
Hall & Hall [1979] FamCA 73
Jurchen & Foster [2014] FamCAFC 127
Rochford & Fitzhugh [2019] FamCAFC 218
Sayer & Radcliffe and Anor [2012] FamCAFC 209
U v U (2002) 211 CLR 238
Vigano & Desmond [2012] FamCAFC 79
Division: Division 2 Family Law Number of paragraphs: 207 Date of hearing: 5, 6 and 7 August 2024 Place: Melbourne Counsel for the Applicant: Mr Hegedus Solicitor for the Applicant: KPM Lawyers Counsel for the Respondent: Mr Kiernan Solicitor for the Respondent: MMH Lawyers ORDERS
MLC 3824 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GULCAN
Applicant
AND: MS PETRONI
Respondent
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
24 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Order 2 of the orders made on 4 December 2022 (spend time orders) are discharged from the day the mother relocates to Sydney with X born in 2020.
2.All other previous parenting orders including order 9 of the orders made on 10 May 2022 and order 6 of the orders made on 19 April 2023 (restraint on travel outside the Commonwealth of Australia and the Airport Watch List Order) are discharged forthwith.
Parental Responsibility and Decision Making
3.The mother and father have joint parental responsibility including joint decision making responsibility for X.
Live With and Spend Time during School Terms and School Holidays
4.X live with the mother.
5.The mother and X are at liberty to relocate to Sydney forthwith.
6.X spend time with the father as follows:
(a)In Melbourne:
(i)During school terms:
A.until X commences living in Sydney, pursuant to order 2 of the orders made on 4 December 2022;
B.upon X living in Sydney until he commences school in 2026, each alternate weekend from 7.30 pm on Friday until 5.30 pm Tuesday, commencing the second weekend after X commences living in Sydney; and
C.upon X commencing school in 2026, each third weekend from 7.30 pm on Friday until 5.30 pm on Sunday commencing the second weekend after X commences the school year; and
(ii)for the purpose of order 6(i) B and 6(i) C herein the mother be responsible for the cost of X’s airfares, her accompanying airfares, or the accompanying airfares of the father or such other person if agreed between the parents in writing.
(b)In Sydney:
(i)once during each school term on such days and at such times as may be agreed between the parents in writing, and failing agreement, from the conclusion of school or 3.30 pm if a non-school day on Friday until the commencement of school or 9.00 am if a non-school day on Monday with the father providing the mother with 14 days written notice of his intention to spend such time with X, and the mother be responsible for the cost of the father’s airfares and half of his reasonable accommodation expenses; and
(ii)during school terms at such other times as may be agreed between the parents in writing, including but not limited to special occasions and religious holidays, with the father to be responsible for the cost of his airfares and accommodation costs, or as otherwise agreed in writing between the parents;
(c)during school holidays:
(i)until X commences school:
A.for one half of the school term holidays as agreed in writing between the parents and failing agreement commencing at 7.30 pm on the last day of school and concluding at 5.00 pm on the middle Saturday in even numbered years, and the second half in odd numbered years commencing at 7.30 pm on the middle Saturday and concluding at 5.30 pm on the last day of the term school holiday; and
B.for two weeks during the long summer school holidays at such times as may be agreed in writing between the parents and failing agreement the two week period to commence at 7.30 pm the day after term four concludes in even numbered years, and in odd numbered years the two week period to conclude two days before the new school year commences in odd numbered years;
(ii)after X commences school:
A.commencing the first term school holidays in 2026 and thereafter, for 10 days of each of the short school term holidays as agreed between the parents in writing and failing agreement the 10 days to commence in even numbered years the day after the school term concludes and in odd numbered years the 10 days to conclude two days before the new school term commences; and
B.commencing the 2026/2027 long summer holiday period and thereafter, for three weeks at such times as may be agreed in writing between the parents and failing agreement the three weeks to commence at 7.30 pm the day after term four concludes in even numbered years, and in odd numbered years the three weeks to conclude two days before the new school year commences;
(iii)for the purpose of order 6(c) herein the mother be responsible for the cost of X’s airfares, her accompanying airfares, and if agreed between the parents in writing the father’s or such other person’s accompanying airfares of the father or such other person; and
(iv)at such further and other times including but not limited to special occasions and religious holidays when X is not ordinarily spending time with the father pursuant to these orders, with the father to be responsible for the cost of X’s and his airfares and the airfares of such other accompanying adult unless otherwise agreed in writing between the parents.
7.X spend time with each of the parents:
(a)with the father if he is not otherwise in his care pursuant to order 6 herein on Father’s Day weekend from 5.30 pm on Friday until 5.30 pm on Sunday with the mother to be responsible for the cost of X’s airfares, her accompanying airfares and if agreed between the parents in writing, the father’s or such other person’s accompanying airfares;
(b)with the mother on Mother’s Day weekend, with the father’s weekend time being suspended for the whole of the Mother’s Day weekend if X is otherwise in the care of the father pursuant to these orders on that weekend;
(c)with the father on Good Friday, Easter Sunday, Christmas Day, New Year’s Day, X’s birthday, the father’s birthday, religious observances when X is ordinarily in his care pursuant to these orders or as otherwise agreed between the parents in writing;
(d)with the father on Good Friday, Easter Sunday, Christmas Day, New Year’s Day, X’s birthday, the father’s birthday, religious observances when X is ordinarily in the mother’s care pursuant to these orders on such dates and times as may be agreed between the parents in writing with the father to be responsible for all airfares and other expenses required to accommodate his time with X, unless otherwise agreed in writing between the parents;
(e)with the mother on Good Friday, Easter Sunday, Christmas Day, New Year’s Day, X’s birthday, the mother’s birthday, religious observances when X is ordinarily in her care pursuant to these orders or as otherwise agreed between the parents in writing; and
(f)with the mother on Good Friday, Easter Sunday, Christmas Day, New Years’s Day, X’s birthday, the mother’s birthday, religious observances when X is ordinarily in the care of the father pursuant to these orders on such dates and times as may be agreed between the parents in writing with the mother to be responsible for all airfares and other expenses required to accommodate her time with X.
8.The weekend time pursuant to order 6 herein shall resume each term in the same cycle as if the school holiday period had not intervened.
Communication
9.X communicate with the father by telephone, WhatsApp or FaceTime if X is not otherwise in his care, and the mother do all acts and things to facilitate the telephone time, WhatsApp or FaceTime, on days and at times as agreed between the parents in writing and in default of agreement as follows:
(a)each Monday, Wednesday and Friday between 6.00 pm and 6.30 pm;
(b)on the father’s birthday between 6.00 pm and 6.30 pm;
(c)on X’s birthday between 6.00 pm and 6.30 pm;
(d)on Christmas Day from 9.00 am until 9.30 am; and
(e)on Good Friday, Easter Sunday, Christmas Day, New Year’s Day, X’s birthday, religious observances from 9.00 am until 9.30 am.
10.X communicate with the mother by telephone, WhatsApp or FaceTime if X is not otherwise in her care, and the father do all acts and things to facilitate the telephone time, WhatsApp or FaceTime, on days and at times as agreed between the parents in writing and in default of agreement as follows:
(a)during all school holiday periods each Monday and Thursday between 6.00 pm and 6.30 pm;
(a)on the mother’s birthday between 6.00 pm and 6.30 pm;
(b)on X’s birthday between 6.00 pm and 6.30 pm;
(c)on Christmas Day from 9.00 am until 9.30 am; and
(d)On Good Friday, Easter Sunday, Christmas Day, New Year’s Day, X’s birthday, religious observances between 9.00 am until 9.30 am.
11.Except in the case of an emergency, the parents communicate in writing in relation to X’s care arrangements and welfare via App Close, WhatsApp, email and similar applications as is agreed in writing between them.
Changeovers
12.Unless otherwise agreed in writing between the parents, changeovers shall occur:
(a)for time spent in Sydney, at B Train Station; and
(b)for time spent in Melbourne, at Tullamarine Airport.
Name Change
13.X, previously known as X Petroni, shall now be known as X Gulcan Petroni with Gulcan Petroni being his surname.
14.The parents are authorised to apply to the Registrar of Births Deaths and Marriages to change X’s surname from Petroni to Gulcan Petroni.
15.Within 14 days of the date of these orders the parents do all such acts and things and sign all such necessary documents to give effect to orders 13 and 14 herein.
16.The father serve a sealed copy of these orders on the Registrar of Births Deaths and Marriages.
Interstate and Overseas Travel
17.Each of the parents be at liberty to travel interstate with X during the time they ordinarily spend time with him pursuant to these orders unless otherwise agreed between the parents in writing, with the travelling parent to advise the non-travelling parent no later than seven days prior to travel of the destination and contact details of X and the travelling parent.
18.Each of the parents, Mr Gulcan born in 1984 and Ms Petroni born in 1987 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X Petroni Gulcan born in 2020 (Male) previously known as X Petroni, from the Commonwealth of Australia unless with the authenticated consent of the parents as prescribed in accordance with regulation 13 of the Family Law Regulations 1984 (Cth) or further order of the court.
19.X Petroni Gulcan born in 2020 be and is hereby restrained from leaving the Commonwealth of Australia.
20.It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until further order.
21.Upon expiration of the period referred to in order 20 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Airport Watch List.
Miscellaneous
22.Each parent, their servants and agents are hereby restrained from:
(a)abusing, insulting, belittling or otherwise denigrating the other in the presence or the hearing of X or permitting any other person to do so;
(b)discussing these proceedings with or in the presence or the hearing of X or permitting any other person to do so; and
(c)travelling with X in a motor vehicle or permitting X to travel in a motor vehicle while X is unrestrained by a seat belt and for as long as necessary an age appropriate car seat.
23.Each parent shall as soon as practicable advise the other parent of any significant illness or injury suffered by X whilst in their care.
24.Each parent shall keep the other advised of their current residential address, email address, telephone number and contact details on any other applications.
25.Each parent are at liberty to receive information from X’s doctors and other allied health professionals in relation to X’s condition, treatment and prognosis subject to the discretion of such health professional exercised to protect any therapeutic relationship with X, and this order serves as authority for each parent to contact any of the doctors and allied health professionals to obtain such information.
26.Each parent are at liberty to receive information from X’s school and/or daycare or other extra-curricular facilities in relation to his educational progress including school reports, newsletters, school photographs and circulars at their expense (if any), and this order serves as authority for each parent to contact X’s school and/or daycare and other extra-curricular facilities.
27.Each parent shall be permitted to attend X’s parent teacher interviews at separate interviews subject to the school/daycare policy.
28.Each parent are at liberty to attend school/daycare events to which parents are ordinarily invited, subject to the school/daycare policy.
29.The parents are at liberty to provide a copy of these orders to X’s doctors, allied health professionals and school/daycare.
30.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out herein and these particulars are included in these orders.
THE COURT NOTES THAT:
A.These orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYMAL
The applicant father and the respondent mother are the parents of X who will shortly turn four years of age. X presently lives in the primary care of the mother and spends time with the father. The parents live in close proximity to each other in Suburb C, a suburb of Melbourne, Victoria (Melbourne). The mother seeks that X live with her in Sydney, New South Wales (Sydney) and spend time with the father in Melbourne, and occasionally in Sydney. The father seeks that X live in Melbourne and by seven years of age, if not forthwith, he live in an equal shared care arrangement between the parents.
For the following reasons, orders are made providing for X to live in Sydney with the mother and spend time with the father in Melbourne and on occasion in Sydney.
THE HEARING
At the commencement of the hearing, the father’s application for divorce was contested by the mother and the adjustment of the parents’ property interests was also in dispute. The parents resolved their competing property claims on the second day the matter was listed. There are pending legal proceedings in Country D between the mother on one side and the father and paternal family members on the other. However, it was agreed that there was no impediment to the making of property orders or a divorce order. Accordingly, on 7 August 2024 I made final property orders by consent and pronounced a divorce order to become final in one month from that date.
In relation to parenting matters:
(a)the father filed an outline of case on 3 August 2024. He relies on his amended initiating application filed on 1 August 2024 and the paragraphs identified by his Counsel in his trial affidavit filed on 8 July 2024. He further relies on eight exhibits;
(b)the mother filed an outline of case on 2 August 2024. She relies on her amended response to final orders and her trial affidavit both filed on 22 July 2024. She further relies on nine exhibits; and
(c)both parents rely on the affidavit of Ms E filed on 2 December 2022 which annexes her short form family report dated 2 December 2022, and Ms E’s affidavit filed on 15 September 2023 which annexes her updated family report dated 31 August 2023.
The mother was an articulate witness. She gave her evidence confidently. I am of the view that she had carefully considered other parenting arrangements in lieu of her and X moving to Sydney before she ultimately decided to pursue her application to relocate. Her focus, unsurprisingly, was on the positives to X and to her if they lived in Sydney.
The father was a quiet witness. He gave emotional evidence and, again unsurprisingly, his focus was on why he did not think it was in X’s best interests to live in Sydney. He sat forlornly at the back of the courtroom whilst observing the proceedings, no doubt contemplating how different his future interactions with X will be depending on where X lived. His fall-back proposal was made with much difficulty as he could not countenance there was a possibility the court may order that X live in Sydney with the mother.
Ms E gave evidence. Whilst she did not make a definitive recommendation in relation to where X should live, there is plainly an undercurrent in her second report and in her oral evidence that she prefers other options for X other than him living in Sydney with the mother.
However, there is “no magic” in a family report and no judge is bound to accept the recommendations within it. Whilst the opinions given by a report writer constitute valuable and relevant material which assists the Court in reaching its determination, the Court is required to consider and give appropriate weight to all the evidence. A family report is but one piece of evidence which the Court considers in reaching its determination.[1] However, the decision not to follow the recommendations of an expert requires some explanation and demonstration that the matters raised have been taken into account.5. [2]
[1] Hall & Hall [1979] FamCA 73.
[2] Vigano & Desmond [2012] FamCAFC 79 at [87]
I have had the opportunity of observing the parents over three days, weighing all of the evidence, and applying the relevant legal principles. Thus, whilst I have been assisted by Ms E’s reports, her oral evidence, and her observations during her interviews, I do not agree with all of her opinions. My rejection of some of her opinions should not be viewed as a criticism of her. Although I have not placed weight on some of Ms E’s evidence, I am not precluded from accepting and putting weight on other parts of her evidence.
I am not required to refer to every piece of evidence relied upon by the parties, traverse every argument that is advanced or make findings in relation to all of the facts that are put in issue by them. I have read all of the documents relied upon and taken all of the evidence and submissions into account. Findings are made on the balance of probabilities and have regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged.[3] My observations of the demeanour of the parents have assisted my assessment of the evidence.
[3] Evidence Act 1995 (Cth) s 140.
LEGAL PRINCIPLES
There is no separate category of relocation cases. Matters involving children moving with one parent geographically distant from the other parent are parenting proceedings and are to be considered and determined in accordance with the best interests of the child being the paramount consideration.
The Court is informed as to what is in a child’s best interests by the matters in section 60CC(2) of the Family Law Act 1975 (Cth) (the Act) and in the context of the objects in section 60B.
Some of the principles emanating from the many authorities that have dealt with the relocation of children include:
(a)the child’s best interests remain the paramount but not sole consideration;
(b)a parent wishing to move does not need to demonstrate compelling reasons for seeking to relocate;
(c)the court cannot compel a party to stay in a location, return to a location, or move to a location except in exceptional circumstances;
(d)the court must evaluate the competing proposals and consider the advantages and disadvantages to the children of each of the parent’s proposals; and
(e)the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.
The Full Court in Franklyn & Franklyn [2019] FamCAFC 256 at [27] said the following:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
THE PROPOSALS
Both parents seek joint parental responsibility including joint decision making responsibility.
The live with and spend time orders during school terms and school holidays are set out hereunder. I canvass special occasions, religious holidays, and ancillary and consequential orders with more particularity later in these reasons.
The orders the mother sought by the commencement of closing submissions are set out in a document now marked as Exhibit M8. In summary, she sought that X live with her in Sydney and that they be able to relocate by 1 October 2024. Her spend time proposal included that X spend time with the father:
(a)during school terms:
(i)in Melbourne, until X commences school in 2026 each alternate weekend from 7.30 pm Friday until 5.30 pm Tuesday, and thereafter each alternate weekend from 7.30 pm Friday until 5.30 pm Sunday; and
(ii)In Sydney, once each school term from 3.30 pm Friday until 9.00 am Monday and on special occasions and religious holidays;
(b)during school holidays from January 2026:
(i)for 10 days during each school term holiday period; and
(ii)for three weeks during the long summer holiday period;
(c)that she fund all of X’s (and her) travelling costs between Sydney and Melbourne. The mother proposes to travel with X on each occasion but return to Sydney by herself on Friday and return to Melbourne on Tuesday, and from 2026 on Sunday, to accompany him on the journey back to Sydney; and
(d)that there be electronic communication between X and the father each Monday, Wednesday and Friday and on special occasions and religious holidays if the father is not otherwise spending time with X.
After hearing Ms E’s evidence and the nature of the discussions during closing submissions, the mother was not averse to orders being made that:
(a)time during school terms take place every three weeks;
(b)there be a combination of orders providing for fortnightly time until X commences school and thereafter once every three weeks;
(c)where practical and with some flexibility, X spend special occasions and religious holidays with the father in Melbourne;
(d)the father be able to spend time with X on more than one occasion in Sydney each school term; and
(e)that she fund the father travelling to Sydney at the commencement of time to collect X and/or if he wishes to also accompany him on the return journey. The mother agrees that this scenario is no more of a financial impost to her than her travelling on four occasions on spend time occasions in Melbourne.
The mother will not move to Sydney if X is required to stay in Melbourne. Her proposal in the event that X is required to remain living in Melbourne is set out in a document now marked as Exhibit M9. In summary, this proposal provides for:
(a)X to live with her;
(b)X to spend time with the father:
(i)until X commences school, each alternate weekend from 5.30 pm Friday until 5.30 pm Tuesday and thereafter each alternate weekend from 5.30 pm Friday until 5.30 pm Wednesday; and
(ii)a sharing of all school holiday periods, special occasions and religious holidays; and
(c)there be electronic communication between X and the father each Monday, Wednesday and Friday, and on special occasions and religious holidays.
The mother also posits a proposal in the event the father relocates to Sydney.
The orders the father sought at the commencement of the proceedings are set out in his outline of case. In summary he seeks that:
(a)X live in Melbourne;
(b)X live primarily with the mother until he attains seven years of age;
(c)X’s time with him incrementally progress during school terms in a two-weekly cycle:
(i)until X commences school, in week 1 from 4.00 pm Wednesday until 5.30 pm Friday, and in week two from 9.00 am Monday until 9.30 am Tuesday and from 9.00 am Saturday until 5.30 pm Sunday;
(ii)thereafter and until X attains seven years of age, in week one from 4.00 pm Wednesday until the commencement of school Friday, and in week two from the conclusion of school Monday until the commencement of school Tuesday and from 7.30 pm Friday until 5.30 pm Sunday; and
(iii)upon X attaining seven years of age X live in a week about arrangement between the parents;
(d)there be an incremental progression of time with the father during all school holiday periods; and
(e)X spend time with each parent on special occasions and religious holidays.
By the conclusion of closing submissions the father, it appears, asks the court to also consider that X live in an equal shared care arrangement in Melbourne forthwith in order to accommodate the mother being able to travel to Sydney for a week each fortnight.
The father’s proposal if X is to live in Sydney is set out in a document now marked as Exhibit F8. This proposal, in summary, provides for X to live with the mother and spend time with him as follows:
(a)between 1 September 2024 until 1 December 2025 each alternate week in Melbourne from 7.30 pm Friday until 5.30 pm the following Friday, with the mother to escort X on the flights and that she pay all of the flight costs;
(b)upon X commencing school in 2026 in Sydney each weekend from 7.30 pm Friday until 5.30 pm Sunday, with the mother to pay the cost of the father’s return flights and the father’s reasonable accommodation and travel expenses; and
(c)during school holidays and on special occasions and religious holidays.
The father will not move to Sydney in the event that X is to live primarily there. The father says he will not and cannot relocate to Sydney due to expensive housing costs, difficulties transferring with his employer from Melbourne to Sydney because of the nature of his work, low employment opportunities for him in Sydney, and what he considers to be a higher level of the cost of living in Sydney than in Melbourne. He asserts that he will not be able to afford housing in the area where the mother intends to live in Sydney. His reasons for not wishing to relocate to Sydney have solid bases. I am of the view that this is not one of those matters of an exceptional nature that requires the court to compel the father by way of court order to relocate to Sydney if orders are made providing for X to do so.
The proposals generally
The mother’s primary proposal is that she relocates with X to live in Sydney. The mother does not wish to continue living in Melbourne but nevertheless will do so if the court is of the view that X should live in Melbourne, thus, she proffers her fall-back position of remaining in Melbourne with X living in her primary care.
The Court, however, must not elevate the mother’s fall-back position of her remaining in Melbourne to the status of an alternative proposal. To do so requires in effect that the mother show compelling reasons why she wishes to relocate to live in Sydney. Such an approach “stacks the cards” unfairly against the mother.[4]
[4] Jurchenko & Foster [2014] FamCAFC 127 at [100] adopting Kirby J’s reasons in U v U (2002) 211 CLR 238 at [144].
The father’s primary proposal is that X remain living in Melbourne. The father’s proposal is essentially the maintenance of the status quo. In considering the competing proposals it is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. The Court must consider each party’s proposal on its merits.[5]
[5] Sayer & Radcliffe and Anor [2012] FamCAFC 209 at [48].
Likewise, the father’s fall-back position in the event the mother is permitted to relocate with X to Sydney should not be elevated to an alternate proposal.
Furthermore, either parent’s “fall-back” or “back-up” position is to be considered only if his or her primary proposal is not accepted and is not to be treated as if it is a primary proposal.[6]
[6] Asher & Wilkinson [2020] FamCAFC 44 at [100].
The primary focus of the Court in these proceedings is whether it is in X’s best interests to live in Melbourne as sought by the father or in Sydney as sought by the mother.
BACKGROUND
The father is 40 years of age. He was born in Country D. The paternal extended family including his parents and his brother live in Country D. The father is employed in administration at a government department. He lives in a home in Suburb C and proposes continuing to live there as he is retaining that property pursuant to the final property orders made by consent on 7 August 2024.
The mother is 37 years of age. She was born in Country D. Her brother, sister and their families live in Sydney. Her sister has lived in Sydney for approximately 18 years. Her parents have lived in Sydney for the past two and a half years without returning to Country D. Previously, they returned to Country D from time to time in order to meet visa requirements.
The mother also presently lives in a home in Suburb C. She has retained that property pursuant to the final property orders made by consent on 7 August 2024. She is presently employed as an executive manager.
The parents commenced a relationship around mid-2017. They married in Country D in 2018. At the time of the commencement of the relationship and at the time of the marriage, the father was living and working in Victoria, and the mother was living and working in Sydney. The mother moved to Australia in 2017 from the United Kingdom where she was working. The mother chose to live in Sydney as that was where her siblings lived and where her parents lived when they were in Australia.
After the wedding, the father returned to Melbourne where he continued to live and work, and the mother returned to Sydney where her employment was based. The mother moved to Melbourne to live on a full-time basis with the father in early 2019 when she obtained a transfer of her employment from Sydney to Melbourne. Between late 2018 and early 2019, the mother frequently commuted between Melbourne and Sydney due to her work commitments in Sydney. She generally travelled to Melbourne every weekend and for special occasions.[7]
[7] Transcript dated 6 August 2024 at pg. 36.
X was born in 2020. He was born prematurely. The mother took 11 months of maternity leave. It is common ground that the parents both cared for X during their relationship. As to be expected, there is a dispute in relation to the extent each parent undertook parenting duties. The evidence, though, clearly supports that both parents were involved in X’s care. This is reflected in the positive observation reports of the relationship between X and the father during X’s supervised spend time occasions with the father when X was not yet two years of age.
The mother did not register the father on X’s birth certificate as a parent. She also registered X on the birth certificate using her surname of Petroni. Order 17 of the consent orders made on 7 December 2022 provided for the father to be included as a parent on X’s birth certificate. That has been attended to. The father now seeks that X’s surname be varied to Gulcan Petroni and that his birth certificate reflect that surname. There is no utility traversing the reasons why the mother initially took the course of action she did in relation to X’s birth certificate, as by the conclusion of the hearing both parents agreed that X bear the surname of Gulcan Petroni and that his birth certificate be amended accordingly.
The parents agree that they argued on 29 March 2022. However, the extent and nature of violence used during that occasion (and at other times during the relationship) is in dispute. The father asserts the mother threatened to take X overseas or interstate and leave him with her parents and that he would not see him again. The mother asserts that the father was extremely angry, yelling and threatening her, and that she was in fear.
The difference between the parents in relation to the date of separation, the mother asserting that separation occurred on 1 March 2022 and the father asserting that separation occurred on 29 March 2022, is of no consequence to my determination.
In early 2022, the mother applied for an intervention order against the father. In mid-2022, a final intervention order was made with the father consenting to the order without admitting to the mother’s allegations. The final intervention order expired in early 2023. X was not listed as a protected person on the intervention order.
The father commenced these proceedings on 11 April 2022. He was not spending regular time with X and was concerned the mother may abscond with X to Sydney or Country D.
On 10 May 2022, orders were made by consent including that X live with the mother and that he spend time with the father on 10 occasions supervised by F Family Services, the father complete a Men’s Behaviour Change Course, and until further order the parents be restrained from removing X from the Commonwealth of Australia and that X be placed on the Airport Watch List.
Order 6 of the orders made by consent on 19 April 2023 provides that until further order the parents, or subject to the authenticated consent of the parents, be restrained from removing X from the Commonwealth of Australia and that X’s name be placed be on the Airport Watch List.
The father spent supervised time with X pursuant to the orders made on 10 May 2022 on 10 occasions between 14 May 2022 and 23 July 2022.
The mother offered the father to spend three hours of supervised time with X notwithstanding that the orders provided only for two hours.[8] The father could not take up that offer because of the cost of engaging a professional supervisor.
[8] Father’s Affidavit filed 8 July 2024 at [25].
The observation reports by F Family Services were positive. There were no concerns raised for X in the father’s care with the father being affectionate, engaged and child focussed.
On 8 August 2022, with the agreement of the mother and prior to the matter returning to court on 15 September 2022, the father commenced spending unsupervised time with X each Monday for three hours from 4.00 pm until 7.00 pm. The father complains that it was difficult for him to arrange his work commitments around those times, and that the mother would not alter the day or times. I note that the mother also had work commitments around which she had to navigate. Nevertheless, unsupervised time did commence with the mother’s agreement prior to court orders being made providing for same.
On 15 September 2022, orders were made by consent including that X spend time with the father each Sunday from 10.00 am until 4.00 pm and on some specified special occasions, and for the family to attend upon Ms E for a short form family report.
X also commenced spending time with the father with the agreement of the mother in addition to the time specified in the orders made on 15 September 2022 in order to accommodate the mother’s work arrangements. He was also spending each Wednesday from 10.00 am until 4.00 pm with the father.[9] Notably, this additional time commenced before the mother formally sought to relocate and prior to the interviews for the short form family report.
[9] Family Report dated 2 December 2022 at [43].
Ms E conducted interviews and observation sessions for the short form family report on 2 and 4 November 2022. At this point in time the mother did not have any application before the court to relocate with X to Sydney.
Contextually, it was August 2022, only some three months prior to the above interviews, that the mother’s employer had issued their return to work on site policy.
Ms E reported that the father was of the view the parents’ relationship was improving, resulting in them communicating more effectively in relation to X’s health and wellbeing including negotiating additional spend time arrangements. The mother also confirmed that the parents had begun communicating more effectively and that they may be in a position to mediate future parenting arrangements for X inclusive of X spending increased overnight time with the father.
Ms E’s recommendations included that:
(a)the parents share parental responsibility for X;
(b)X live with the mother;
(c)the father’s time with X progress to one overnight per week, then two consecutive nights each week upon X attaining three years of age; and
(d)consideration be given to X’s parenting arrangements being more flexible during times when his extended family visit Victoria.
On 30 November 2022, the mother filed her amended response in which she sought the orders providing for her to relocate with X to Sydney and spend time with the father in Melbourne once per four weeks and in Sydney once per four weeks.
Despite the father complaining that the mother was only inclined to provide overnight time after she filed her amended response on 30 November 2022, I note that the mother did propose to Ms E that X’s time with the father should progress from daytime every Sunday to until a return to day care on Tuesday. The father was seeking that time progress to an equal shared care arrangement. I further note that at the time of the report and the filing of the mother’s amended response, X had just turned two years of age.
On 7 December 2022, orders were made by consent including that X spend time with the father in a two week cycle on each Sunday from 9.00 am until 5.00 pm and, in week one from 10.00am Monday until 10.00 am Tuesday, in week two from 10.00 am Thursday until 10.00 am Friday, and five specified days between 25 December 2022 and 8 March 2023, video calls take place each Wednesday between 7.00 pm and 7.15 pm, and that the father be included as a parent on X’s birth certificate.
Order 8 of the orders made on 7 December 2022 provided that X spend additional time with the father in early 2023 during each fortnight that the paternal grandparents are in Victoria, being one additional daytime period on a day each fortnight from 9.00 am to 5.00 pm or an extension of overnight time to a 5.00 pm changeover, and in default of agreement of the day, the father nominate two days at least seven days in advance and the mother to select one.
On 19 April 2023, orders were made including that the parents have equal shared parental responsibility for X and for the family to attend upon Ms E for the purpose of a family report.
On 31 July 2023 and 4 August 2023, Ms E conducted interviews and observation sessions with the family.
The issue of a relocation of X to Sydney was now squarely before Ms E.
Ms E raised concerns in her report regarding X’s capacity to maintain and continue to strengthen his relationship with the father electronically if X lived in Sydney, stating that at his young age, X’s relationship with the father is maintained via physical, imaginary play and practical caring routines.
Ms E was of the view that:
(a)at this young age, it is likely that X’s relationship with the father would be considerably disrupted were X’s frequency of time with the father be reduced;
(b)a relocation for X at this stage would not be in his best interests and that the issue of whether or not the mother relocates to Sydney with X on a permanent basis be reconsidered upon X attaining eight years of age; and
(c)consideration be given to X spending increased time with the father in the future to provide the mother with the flexibility to spend additional time in Sydney on a regular basis.
Ms E recommended that:
(a)the parents share parental responsibility;
(b)if X lives in Sydney, consideration be given to him spending as many weekends with the father as possible given he is currently too young to immediately spend long periods of school holiday time with the father; and
(c)if X and the mother remain living in Melbourne, X’s time with the father progress to overnight time two nights per week with a view to extending time to five nights per fortnight upon X commencing his prep year.
On 4 December 2023, interim orders were made providing for X to spend time with the father in week one from 7.30 pm on Friday until 5.30 pm on Sunday and in week two from 5.30 pm on Wednesday until 5.30 pm on Friday, additional time in a block of four nights in January 2024 and the Easter 2024 school holidays, and on some special occasions. These are the operative parenting arrangements at the time of the final hearing.
The progression of X’s time with the father pursuant to the orders made on 4 December 2023 reflects the spend time recommendation in Ms E’s family report for time to progress to two consecutive nights each week, such recommendation aligning with her recommendation in her short form family report of X spending two consecutive nights with the father each week upon commencing three years of age. X turned three years of age in 2023.
WHY THE MOTHER WISHES TO MOVE TO SYDNEY
The mother is not required to demonstrate compelling reasons for seeking to relocate. However, reasons for the move are relevant inquiries as they assist the court in assessing what benefits or detriments may flow to the subject child/children as a consequence of relocating or not relocating.[10]
[10] AMS v AIF (1999) CLR 160 at [218].
The mother has two reasons underpinning why she wishes to relocate with X to Sydney, the continuation of her current employment with advancement of career opportunities, and the support of her family. Taking into account the following, I am satisfised that the mother has sound bases for relocating to Sydney.
Employment
The mother has been employed with her employer since late 2021. She asserts that her employer’s head office and management is in Sydney. When the mother commenced employment, she was not in a leadership role. Her base salary was $157,000.00 per annum. She was promoted to a leadership role in mid-2023.
The mother told the court that she is employed as a cybersecurity professional. She leads a team which drafts the solutions and multiple proposals for a different number of customers and clients. Her employer has multiple clients across the nation. I accept her evidence that one of her employer’s clients is a state government department and that she has never worked as an employee of that department. Other clients of her employer include a federal government department. The primary corporate organisations with whom her employer works are based in Sydney. Her team are all located in Sydney.
The mother’s evidence is that at the present time she is only undertaking around 65 per cent to 70 per cent of her expected work duties and responsibilities associated with her leadership role. Her present base salary is $175,536.00 per annum.[11] Her role has been temporarily adjusted to accommodate her present circumstance of living in Melbourne and not being able to work on site in Sydney on a full-time basis, thus being unable to perform all of her duties. If she undertakes all of her employment duties her base salary will increase to $202,000.00 per annum. She will also be able to receive monetary bonuses. She is on her employer’s leadership board. If she attains first place, she will receive an award and a monetary bonus.
[11] Exhibit F7.
The mother says that she can only fulfil all of her work requirements if she works in Sydney. She further says that she is required to work on-site in accordance with the mandate issued by her employer in mid-2023 requiring employees to work on-site. This mandate followed the company’s return to work on-site policy emanating in August 2022 as a consequence of the Covid-19 global pandemic abating.
The mother relies on a letter dated 7 June 2024 from Human Resources addressed to Whom it May Concern in support of her assertions. [12] The letter records that the mother is employed in a full-time capacity of 37.5 hours per week and lists her job duties in her current designation. The letter concludes with “[the mother] has partially completed all of the above duties with good performance and is expected to resume full responsibilities upon returning to the head office”.
[12] Exhibit M1.
I accept the criticism made by Counsel for the father in relation to the mother’s scant evidence from her employer she submits to the court in support of their requiring her to relocate. However, notwithstanding that she can rely only on that letter, the sentence quoted from the letter in the preceding paragraph speaks for itself. As Counsel for the mother submitted, “[it’s] in black and white from the company”.[13]
[13] Transcript dated 7 August 2024 at pg. 161.
I accept the mother’s evidence that her employer gave her latitude in relation to her work duties and flexibility in relation to her move to Sydney as she was one of the leaders in whom the company had invested and they had knowledge of her family circumstances and this pending litigation. The mother told the court that it took a really long time for her employer to train her in her particular specialised role. I consider that it is more probable than not that her employer did not want to lose her as an employee as she was successful in her job and they had already invested in her, thus were prepared to accommodate her as much as possible.
At the present time, in Melbourne the mother works from home or in a shared office space of which the rent is paid by her employer. Her work also involves frequent travel to Sydney to manage her team and work with her colleagues who are in Sydney. She travels with X to Sydney for around eight days almost every month and a few smaller trips in order to keep up with her work.
A focus of Counsel for the father’s cross-examination of the mother was whether the mother knew she was required to return to Sydney to work when she signed her contract of employment in late 2021. Counsel also queried the mother’s assertion that discussions were held between the mother and the father during the relationship in relation to the family moving to Sydney so the mother could continue working at the company. The mother says this was possible as the father’s employer is a national company and there was the potential that the father could transfer with the company, and also the employer of the second job he had was based in Sydney.
I consider little turns on a determination of these two issues in dispute as in mid-2022 the mother’s employer had a return to on-site work policy, and in mid-2023 they mandated that employees return to on-site work. The mother told the court that when she commenced working with the company she did “hybrid work”, working from home, sometimes going into the shared office space and also travelling to Sydney.[14]
[14] Transcript dated 6 August 2024 at pg. 45.
I also consider that little turns on the evidence in relation to the rental agreement or the cost of rental to the company of the shared office space in Melbourne as, in any event, the lease between the company and the landlord of the premises expires in late 2024.
The father’s proposal to fast-track an equal shared care arrangement in Melbourne on a week about basis for X is predicated on such an arrangement providing the mother with the opportunity to travel and work in Sydney more frequently, that is, every alternate week when X is not in her care but living with the father.
In relation to a week about arrangement, the mother says that five days per fortnight working in Sydney is not enough for the work and responsibilities she must undertake, including that she is unable to lead her entire team fully. She has already asked her employer whether it would be acceptable to work five days a fortnight in Sydney. She said that her request was denied.[15] I accept her evidence.
[15] Transcript dated 7 August 2024 at pg. 94.
Counsel for the father submits that I should find that “the mother is not at risk of losing her employment if she does not relocate. It may be that the mother has better chances of promotion or job prospects in Sydney,[16] and that despite not being in Sydney, she seems to be doing very well in her position. He observes that she was promoted to her present position in mid-2023 when she was still living in Melbourne. I observe, though, that by mid-2023 the mother had her relocation application before the court and that her employer was well aware of her personal circumstances, including the pending litigation. It seems to me that her employer had some degree of optimism that the mother would be able to relocate to Sydney.
[16] Transcript dated 7 August 2024 at pg. 152.
The mother told the court that she is expected to resign if she does not move to Sydney. The mother has no corroborative evidence from her employer in this regard. However, I accept her evidence when she says, “I’m respectfully expected to leave the company if I’m not able to do the justice, and my duty of care”.[17]
[17] Transcript dated 6 August 2024 at pg. 68.
Counsel for the father is critical of the mother’s failure to provide evidence of her seeking to apply for equivalent positions in Melbourne either with her employer or another employer.
The father relies on a job advertisement from early 2024 for employment with the mother’s employer with the same title, which records that it is a full-time position with its location being in Melbourne.[18] Upon examination of the tasks required to be undertaken in that role, I am satisfied, as the mother explained, that they are not within her “niche” of cybersecurity but rather are in a different area of expertise.
[18] Exhibit F5.
The mother concedes that there are other employees in Melbourne, but they do not specialise in cybersecurity. In short, the mother’s case is that she has a particular specialisation within her company that is based in Sydney.
The mother asserts that there are not many roles with her specialisation and expertise that are advertised in Melbourne. There is no evidence before the court suggesting otherwise.
The mother told the court that she is in the “top two percent layer” of the company. The mother has plainly excelled in the work she has undertaken. She has been promoted, she is on the leadership board, she is the youngest of the executives employed b her employer and is one of only two women that have been promoted to these more senior positions within the company. She is working in an environment where she feels recognised. She does not feel that obstacles are being put in her way because she is a woman and a mother.
The mother told the court that “the sky is the limit for this kind of specialised role”. As Counsel for the mother submits, “she has an eye to keep moving up the ladder in this organisation – a massive multinational corporation”.[19]
[19] Transcript dated 7 August 2024 at pg. 161.
I am satisfied on balance that:
(a)her employer does require the mother to work on-site in Sydney in order to fulfill all of her employment tasks and obligations;
(b)the mother will have to resign from her employment if she cannot relocate to Sydney;
(c)the mother remaining with her employer offers her extensive employment opportunities and furtherance of her career; and
(d)given her specialised area of expertise she will have difficulties obtaining commensurate alternative and similarly lucrative employment in Melbourne either within or outside of her company if she is unable to relocate to Sydney.
Family
The mother’s brother, his wife who is also X’s godmother, their children and the mother’s sister and her family live in Sydney. The maternal grandparents also live in Sydney. They live with the mother’s brother and his family.
When the mother travels to Sydney for work, she and X stay at her brother’s home. If orders are made providing for the mother and X to live in Sydney, the mother proposes that they live in her brother’s home. The maternal family also have an apartment in Sydney. The home of the mother’s brother is large and has all the usual amenities befitting a comfortable home. The mother described living in Sydney like living in a “village”.[20] She has a big network to which she has access to emotional and practical support.
[20] Transcript dated 7 August 2024 at pg. 102.
There is no doubt that the mother’s family is supportive of her. The mother’s sister travelled to Melbourne for two weeks after X was born to provide support to the mother notwithstanding that she worked in Sydney and had a child of her own.
The mother’s parents also stayed with the mother, father and X for two months during the relationship. Furthermore, her brother, sister-in-law, and father travelled from Sydney to support her during the hearing and sat quietly in court observing the proceedings.
The mother’s evidence is that if she lives in Sydney with X, she will be better able to meet X’s needs as she will have the support of her family. They will be available to care for X when she is otherwise unable to do so, particularly taking into account her work commitments. The mother says that the support of the extended maternal family will improve X’s wellbeing and ensure that he is well supported as he continues to develop.[21]
[21] Mother’s Outline of Case filed 2 August 2024 at pg. 4.
The father asserts, “[the] Mother and I have established ourselves in Melbourne since our relationship and prior to separation, we had a good support network that I imagine the Mother still maintains”.[22] He further asserts that since the marriage they rarely travelled to spend time with the maternal family in Sydney, therefore X has not had time to develop any kind of bond with his cousins.[23] However, the “rare” travel to Sydney between X’s birth in 2020 until separation in March 2022, must be viewed in the context of the regular and extensive border closures between Victoria and New South Wales during much of that period of time.
[22] Father’s Affidavit filed 8 July 2024 at [61(a)].
[23] Father’s Affidavit filed 8 July 2024 at [61(c)].
The mother is in good health but is “homesick”. However, she does not press a case that her parenting capacity is adversely impacted as a consequence of her living with X in Melbourne. The mother told the court that she “was never settled in Melbourne. It was never a home”.[24] I am of the view that is likely how she felt, and still feels. She travelled between Melbourne and Sydney immediately following the marriage for some five months, she was in Sydney for two months commencing late 2020, and since commencing employment with her current employer she has travelled frequently between Melbourne and Sydney for work purposes and continues to do so.
[24] Transcript dated 7 August 2024 at pg. 103.
Whilst having family support in Sydney is a sound standalone reason for the mother to relocate there, Counsel for the mother is correct when he submits that there is an intersection of two tangible benefits to the mother. The mother relocating to Sydney has a double benefit to her of not only maintaining a job with career prospects but also having the assistance of family with X’s care and by doing so are able to support her career. I agree with Counsel for the mother that it is a “fortuitous circumstance” that the job that offers so much to her is based in Sydney and that Sydney is also where her family is located.
SECTION 60CC(2)
Section 60CC(2)(a): what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a person has parental responsibility for the child)
Section 60CC(2A) of the Act provides that in considering the matters set out in section 60CC(2)(a), the court must consider any family violence order that applies to the children and the parents and any history of family violence, abuse, or neglect involving the children or a person caring for them.
The mother makes serious allegations of family violence perpetrated against her by the father during the relationship. The father denies the severity of the allegations of choking, assaulting and threatening to kill the mother. There is some commonality though between the parents despite their divergent accounts of the extent of the family violence, that is, there were heated verbal arguments between them.
The father has completed the Men’s Behaviour Change Program pursuant to the orders made on 10 May 2022. I accept that he takes responsibility and is contrite for his use of “bad” words, denigration of the mother and placing his hand on the side of the mother’s neck.
There is no intervention order presently in place between the mother and the father.
There is no suggestion that the mother intends to apply for any further intervention orders against the father for the protection of either her or X.
Since the parents separated, no family violence has occurred. With the passage of the time the parents have settled into a communicative and satisfactory co-parenting relationship.
Considering the above and given the nature of the proposals sought by the parents I consider there is no utility in making findings in relation to family violence where the evidence of the mother and father are in conflict.
There are no other risk factors identified by the parents affecting X’s safety when in the care of either parent.
The parents’ proposals provide safe arrangements for X and do not expose or subject him to any family violence, abuse, neglect or any other harm.
Section 60CC(2)(b): any views expressed by the child
X is of such an age and stage of development that any views he may hold carry little, if any, weight to my determination. Neither parent suggests otherwise.
Section 60CC(2)(c): the developmental, psychological, emotional and cultural needs of the child
X presently attends three-year-old kindergarten. He will attend four-year-old kindergarten next year and commence his primary school education in 2026.
Both of X’s parents are of Country D culture and heritage. X is bilingual, speaking both English and Country D language.
X is now a happy and healthy child and is meeting all of his developmental milestones. His asthma and eczema have significantly improved.
Ms E’s oral evidence expanded on the reservations raised in her family report in relation to X’s capacity to maintain a relationship with the father through electronic communication coupled and her recommendation that a relocation be reconsidered when X attains eight years of age.
I observe that Ms E places X in her family report at three years and five months. X, however, was aged only two years. In any event, Ms E told the court that:
So, children under eight are more in – their relationships are based often through play, through, you know, tactile experiences, through imaginary – not – sorry, incidental kinds of interactions. The older a child becomes, the more likely they can maintain that just, you know, by telephone and by video. But at – you know, under eight, you know, play is so important and that’s, you know, engaging and face-to-face.
So, that’s preferable and so there’s a potential, then, for that diminishment between, say, the ages of four or five to eight for that three or four-year period between now until the age of eight to then have a long-term impact on the relationship – or the growth of the relationship.[25]
[25] Transcript dated 7 August 2024 at pg. 122.
The mother had already considered Ms E’s recommendation to defer her relocation application until X turns eight years of age before Ms E gave her oral evidence.
The mother told the court that at eight years of age, X would already be ensconced in his school environment. The mother was of the view that it would be more difficult from X’s perspective to move at that time given the school peers and social connections he would have established through his education and outside of school activities. I consider there is merit in the mother’s concern. She had considered that if they move now that between now and until X commences school there is the capacity to have more flexibility with the spend time arrangements than after he commences school. The mother stressed a number of times that she was prepared to be flexible with arrangements. I accept her evidence that she will be flexible.
The nature of the mother’s proposal is such that X will still be spending four nights per fortnight with the father, albeit in one block, until he commences school in January 2026. If the father takes up the opportunity to spend time with X in Sydney as proposed by the mother, X’s time with the father will be more frequent. I consider that the nature of the mother’s proposal mitigates the potential of the relationship between the father and X being adversely impacted. Furthermore, the mother says that X is competent using electronic communication. I note that X has been communicating electronically with the paternal grandparents from a very young age and their relationship has been maintained with such communication alongside face-to-face time personal time.
No doubt X’s language skills have improved since Ms E observed him in August 2023. Using electronic communication is not novel to X. I am of the view that X already has an established relationship with the father. Their relationship will continue to develop and further strengthen by the time X commences school taking into account the terms of the mother’s proposal.
Critically, a deferment of any relocation application does not assist the mother with maintaining her employment, achieving her career goals or having the support of her family.
Section 60CC(2)(d): the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
There are no criticisms to be made of the father’s capacity in providing for X’s developmental, psychological, emotional or cultural needs.
I do not propose to canvass any child support assessment issues as I consider that the non‑payment of any child support by the father to the mother since October 2023 is not because of any reluctance on his part but rather is due to the internal processes of the Child Support Agency in relation to fixing the quantum of the assessment.
The only significance the mother places on the non-payment of child support is that she is nevertheless prepared to fund the majority of the costs of implementing her spend time proposals notwithstanding there is an absence of child support being paid.
The father acknowledges that the mother is a good mother and there are no safety concerns for X whilst he is in his mother’s care. Rather, his concerns are that the mother wishes to minimise his role in X’s life. He further asserts that her focus is on her career, therefore X’s daily care will be relegated to others. He says that it should be him rather than the mother’s extended family undertaking that responsibility. He asserts that he is willing and able to do so.
In this respect, the father says that if X lives in a week about care arrangement in Melbourne, then the mother is free to travel to Sydney every second week for work purposes when X is in his care.
The father told Ms E in July/August 2023 that he works a six-week rotating roster of seven days per fortnight with this roster available well in advance and a great deal of flexibility.[26] However, the father is critical of the mother not providing additional time with X around his existing work commitments.
[26] Family Report dated 31 August 2023 at [39].
There is also a dearth of evidence provided by the father in relation to how he will practically and logistically manage an equal shared care arrangement or an incrementally increasing time arrangement with his work commitments. Other than saying he will use childcare, he did not identify any other supports that were available to him in his care of X. He did not provide evidence of the attitude of his employer to accommodate a week about arrangement.
Furthermore, in November 2022 the father told Ms E that he has three free days per week and every six weeks he has seven days off in a row.[27] There is no evidence before the court that, despite his roster having some flexibility, it is flexible enough to accommodate a week about arrangement. Plainly, it was not flexible enough to accommodate the spend time orders made on 4 December 2023 as the father had to reduce his working hours in order to make himself available to X during those spend time periods. The father’s income was $80,000.00 per annum. A reduction in the quantum of his pay to between $65,000.00 and $70,000.00 per annum reflects the decrease in his work hours.
[27] Family Report dated 2 December 2022 at [48].
Accordingly, in a vacuum of evidence in relation to the father’s work commitments being able to provide for a week about arrangement, it appears to me that I am unable to seriously consider the father’s proposal that X live in Melbourne in a week about arrangement. It is also difficult to be satisfied that his work commitments can accommodate his proposed progression of time to an equal shared care arrangement. Thus, the suggestion by the father that the mother could travel to Sydney every alternate week cannot be supported by the evidence presently before the court.
I consider that the father’s evidence that he would use childcare facilities seems to dilute the weight to be given to his criticism of the mother’s intention of utilising family to support her because of her work commitments. The father placing X in childcare because of his work commitments has the same effect of X being cared for by third parties. I make this observation though with no criticism of the use of independent childcare providers in lieu of family members.
Furthermore, and I repeat, the key flaw in the father’s proposal from the mother’s perspective is that a progression of time or a forthwith week about arrangement in Melbourne does not provide the mother with the ability to be on site in Sydney to the degree required by her employer.
I discount Ms E’s evidence in relation to her suggestion that the mother relocate to Sydney without X, X live in Melbourne in the primary care of the father, and that the mother spends time with X. The mother’s evidence was unequivocal, she will not move to Sydney if X is required to stay in Melbourne.
The mother is not critical of the father’s capacity in providing for X’s needs. Neither does she suggest that X is not safe in the father’s care despite her family violence allegations.
It is clear that the parents want the very best for X. The quality of their parenting is such that both parents will ensure that all of X’s developmental, psychological, emotional, cultural and educational needs will be met.
Particularly significant to relocation cases is the attitude and commitment of the moving parent to ensure that a relationship between the child and the non-moving parent is facilitated and maintained after the relocation.
The father asserts that the mother altered her position to relocate to Sydney for the purpose of inhibiting his relationship with X upon her realising that it was likely that orders would be made providing him spending increased and significant time with X. He does not accept that the mother is required to move to Sydney to continue and fulfill her employment role. I reject that assertion on two bases. First, the findings that I have made in relation to the mother’s employment with her employer. Secondly, the mother’s generosity with her spend time proposals and her attitude to time between X and the father before she formally filed her relocation application.
The father asserts that the mother will not facilitate his relationship with X or comply with court orders if X lives with her in Sydney. I reject that assertion for the following reasons.
Despite the family violence allegations, the mother nevertheless enabled X to spend time with the father on 30 and 31 March 2022, immediately after the argument on 29 March 2022. Albeit supervised time was initially ordered, time progressed thereafter to unsupervised time, initially without a court order, and consecutive overnights.
I consider that the father’s complaints that the mother could have and should have provided more time for him to spend with X raises no concerns. Overall, given X’s young age when the parents separated, I am of the view that the father’s progression of time with X has been developmentally appropriate and has been in his best interests. The progression has been in accordance with Ms E’s recommendations in both of her reports, namely, that X spend time with the father on two consecutive nights upon attaining three years of age. Such an arrangement has been in place since December 2023, shortly after X turned three. That X is transitioning well between the parents’ homes and is thriving in their respective care is testament to the spend time arrangements that have been in place being appropriate to X’s age and stage of development at any given time.
The father contends that the mother only provided for overnight time after she filed her amended response seeking to relocate in order to shore up her case rather than a desire on her behalf to support a relationship between him and X.
Ms E records in her first family report that the mother “denied intending to relocate with [X] or that she had ever threatened to do so”.[28] However, the mother deposes that she “mentioned” her desire to relocate to Ms E and that she was in the process of finalising her documents with her solicitor, so they were filed after the interviews.[29]
[28] Family Report dated 2 December 2022 at [52].
[29] Mother’s Affidavit filed 22 July 2024 at [204].
Ms E records in her second report, “it was concerning that [Ms Petroni’s] affidavit and new proposal was written shortly after the previous interview and ready to lodge with supporting information to support a contrary position”.[30]
[30] Family Report dated 31 August 2023 at [53].
Ms E remained critical of the mother during her oral evidence. It seems to me that Ms E saw that there was a change of heart on the part of the mother in relation to family violence and safety issues from the first interview in November 2022 to the second interview in July 2023 only for strategic purposes.
However, the mother had no reservation proposing to Ms E during the November 2022 interview, that is, before she filed her response, that the father spend overnight time with X, she agreed to unsupervised time commencing without a court order and provided time with the father in addition to court orders. I consider that by November 2022, whilst family violence in the relationship was canvassed in the first report, family violence was not used as a strategy by the mother to minimise X’s time with the father at that point in time.
There is no doubt that the mother is very generous with her spend time proposals, offering frequent and regular time during school terms and most of all of the school holiday periods. She also proposes that she bear all of the cost to implement the spend time arrangements occurring in Melbourne and some of the cost if time takes place in Sydney.
It is evident that the mother desperately wants to move with X to Sydney. One could express some cynicism in relation to the motivation for the generous nature of her proposals and her spontaneous agreements to further improve on those arrangements. However, whatever the motivation behind her proposals, of which I am nevertheless satisfied is to maintain the relationship between X and the father, it is of benefit to the father and X.
The father also contends that the mother fabricated the family violence allegations for strategic purposes to give more weight to her application to relocate. I do not accept that contention. If that was the case, notwithstanding the mother’s affidavit deposing to alleged occasions of family violence occurring, the mother has not pursued the issue of family violence as a persuasive factor before the court to bolster her case to relocate with X. Her argument is the opposite: X is safe in the care of the father, and the father and her are able to communicate cooperatively.
X has attended all but one period of court ordered time with the father. That occasion was when the maternal grandfather became quite ill. Make-up time between the father and X was arranged and agreed upon.
The father alleges that the mother has not been supportive of X spending time with the paternal grandparents when they have been in Australia. He asserts that X’s ability to spend time with the extended paternal family will be even more difficult if X lives in Sydney because the mother will not facilitate additional time to enable X to spend time with them.[31]
[31] Father’s affidavit filed 8 July 2024 at [59(d)].
The father complains in relation to the difficulties associated with X spending the additional time with him when the paternal grandparents were in Australia pursuant to order 8 of the consent orders made on 7 December 2022. The paternal grandparents stayed in Australia for 12 months and arrived several months later than originally anticipated. However, it appears there were practical difficulties working around X’s enrolments at childcare at that time. It should not be forgotten that the mother works full-time and requires some predictability and certainty in childcare arrangements given that her family support network is located in Sydney.
I accept that the mother is willing to be flexible and facilitate extra time with the father’s family when they are in Australia if X is to live in Sydney.
The father also points to the time the mother took X to Sydney in 2020, shortly after X was born. The father and mother agreed that the mother and X could go for 15 days. Instead, the mother stayed for two months. The mother asserts that the family violence ramped up after X was born, that she went to Sydney to protect X and her, and to give the father time “to reflect on his abusive behaviour”.[32] The mother admits that she and X stayed longer in Sydney than agreed as she was seeking support from a general practitioner and a social worker. She and X returned to Melbourne once the father committed to improving and undertaking counselling.[33] Upon the mother’s return, the parents did attend counselling. In light of that evidence, I am of the view that it is disingenuous of the father to suggest that there was no other motivation of the mother staying longer in Sydney other than her desire to minimise his role in X’s life.
[32] Mother’s affidavit filed 22 July 2024 at [90].
[33] Mother’s affidavit filed 22 July 2024 at [197].
The mother has not taken any opportunistic action by overholding X in Sydney during any of the occasions they have travelled there. She has ensured that X returns to Melbourne in order for him to spend time with the father pursuant to court orders, save for the one time when the paternal grandfather was ill, such occasion being excusable in those circumstances.
The mother has the financial capacity to fund her initial proposal and the variations made thereto. She has calculated the annual costs of her spend time proposals and investigated how to defray the cost by booking in advance. She has a track record of complying with court orders and the evidence supports that she acknowledges and accepts that X’s relationship with the father should be maintained and fostered.
I am of the view that the mother has a proven facilitative positive attitude to the relationship between X and the father and she will continue to be facilitative. The Court is not required to take a leap of faith in that regard if orders are made providing for X to live in Sydney.
Section 60CC(2)(e): the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
There is a benefit to X having a relationship with both parents and there are no safety concerns surrounding his ability to do so.
The Explanatory Memorandum to the Family Law Amendment Act 2024 (Cth) provides in relation to section 60CC(2)(e):
This consideration recognises the importance of parental relationships, and relationships with other people who are significant to the child (such as grandparents or members of a broader kinship group) to a child’s wellbeing. Where appropriate and safe, parenting orders that ensure children benefit from a close and nurturing relationship with their parents should be made.
No one particular arrangement will work for all children or all families, whose needs are diverse and will change over time. However, where safe and appropriate, most children benefit from spending time with their parents not only at the weekends and in school holidays, but also during the school week, and will also benefit from allowing each parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child.[34]
[34]Family Law Amendment Bill 2023 at [45] to [47].
Both parents acknowledge that X has a close and loving relationship with each of them. X’s bond with the father has strengthened over time. The father deposes that they have a strong bond, positive relationship and that X is “closely attached” to him.[35] I am of the view that the relationship X has with the father is already “close and nurturing”.
[35] Father’s affidavit filed 8 July 2024 at [39].
If X lives in Sydney with the mother, plainly the pattern of time X spends with the father will be different than if he remains living in Melbourne, whether that be in either an equal shared care or substantial and significant time arrangement.
If X lives in Sydney, pursuant to the mother’s proposal with the variations to which she takes no objection, X will be spending time with the father on weekends, during school holidays, on some special occasions and religious holidays. X will also spend time with the father during the school week if the father travels to Sydney to spend time with him. I note that the father’s roster provides him with one week off every six weeks and three days off each week. I repeat, the mother is not averse to being flexible with spend time arrangements and is prepared to fund some costs of the father’s travel and accommodation in Sydney.
I do, however, acknowledge that the father’s ability to engage in X’s daily life will be more limited if X lives in Sydney than if he lives in Melbourne. The father’s ability to engage in X’s extra-curricular activities and his school routines and school activities when he commences school will be impeded. However, that is not the same as concluding that X will not continue to benefit from a close and nurturing relationship with the father if he lives in Sydney.
In Rochford & Fitzhugh [2019] FamCAFC 218 (Rochford), the Full Court discounted the view that the only way a “meaningful” relationship can be maintained is if parents live in geographical proximity. The Full Court observed a long-distance relationship can nevertheless be a meaningful one and “whilst not optimal for the purpose of maintaining a meaningful relationship, might in light of the practicalities, nonetheless be adequate for that purpose”.[36]
[36] Rochford & Fitzhugh [2019] FamCAFC 218 at [41].
Whilst the Full Court in Rochford was referring to the section 60CC consideration prior to the 2024 amendments to the Act of the benefit to the child of a “meaningful” relationship, there is nothing to suggest that the 2024 amendments require the court to make orders to ensure that there is an optimal “close and nurturing” relationship. I consider that the Full Court’s observation in Rochford in relation to a “meaningful” relationship is equally applicable to a “close and nurturing” relationship.
I am satisfied that the mother’s proposal, whilst not optimal for the purpose of maintaining a close and nurturing relationship between X and the father, is in light of the practicalities nonetheless adequate for that purpose.
Ms E told the court that alternate weekend travel would be “really tiring” for X. She said that “five-year-olds are at an interesting time of life because you are starting to move from childcare to full-time school, so even without travelling they get really tired in that year”. Ms E speculated that this may have an impact on X’s schooling.
Counsel for the father and Ms E question the sustainability of an alternate weekend spend time arrangement and periods of time away from his home base in Sydney upon X reaching adolescent or even pre-adolescent years. They speculate that X may not wish to travel away from his social and peer groups in Sydney, miss events such as birthday parties, or be absent from his sporting or other extracurricular activities in which he may be involved on weekends. Accordingly, if he does not wish to travel to Melbourne, they contend this will have a negative impact on the father/son relationship.
Ms E could not predict with certainty that frequent long distance travel by X between the parents’ homes would not be sustainable. She was aware that in some cases long distance travel, albeit by road travel but sometimes amounting to the same duration of travelling time between Sydney and Melbourne appeared to work. She said, “whether its sustainable long term is always the curious part of that”.[37]
[37] Transcript dated 7 August 2024 at pg. 118.
The mother acknowledged that there may come a time in the future when the decision to travel to Melbourne may be difficult for X. She also said, “but at the same time he’s going to see the father. And I’m sure the bond they share now, and the way they will grow together, they will share this special, and he will prioritise, the family will be prioritised”.[38]
[38] Transcript dated 6 August 2024 at pg. 78.
I acknowledge there is the possibility that at some time in the future matters not related to the quality of the father’s ability to care for X may have an impact on X’s desire to travel to Melbourne. However, it is not only the long-term effect on a child of proposed orders that is to be considered by the court but also the immediate and medium-term impacts.[39]
[39] Bielen & Kozma [2022] FedCFamC1A 221 at [30].
X is not yet quite four years of age. X is accustomed to flying given his monthly travel between Melbourne and Sydney for most of the past year. The mother told the court that X loves and enjoys flying, he is a frequent flyer, has a cartoon character suitcase. He goes and he’s excited. Even coming back, he knows that he’s going to see the father”.[40] I accept her evidence.
[40] Transcript dated 6 August 2024 at pg. 72.
I am of the view that given X’s young age there are many years before external influences in Sydney may have an impact on X’s desire to travel to Melbourne. It may be that sometime in the future the parenting arrangements may have to change. This is not necessarily surprising in any case when children are subject to court orders from a very young age. I consider that the court in this matter does not have such a crystal ball to make orders for a child who is not yet four years of age to endure for a further 14 years. What the court can do is look at the prevailing circumstances and evidence at the time and, in accordance with the legal principles and authorities, exercise its discretion as best it can to make orders in X’s best interests. As observed by the Full Court in Grella & Jamieson [2017] FamCAFC 21 at [18]:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
The mother posits several reasons why she does not agree that an equal shared care arrangement is in X’s best interests. As I do not propose to make such an order in a vacuum of evidence supporting that the father is able to logistically engage in such an arrangement, and that it does not alleviate the difficulty of the mother being required to relocate to fulfill her work obligations, I do not canvass any further an equal shared care arrangement for X in Melbourne.
There is no doubt that X has warm and loving relationships with the extended maternal family given the mother and he stay at the home of the mother’s brother when they travel to Sydney. X’s relationships with the extended maternal family will be further fostered if X lives in Sydney.
Likewise, X undoubtedly has a warm and loving relationship with the paternal grandparents. They too have spent time with him in person in Australia, including for one year. They maintain contact through regular electronic communication when X spends time with the father so that they can maintain their relationship. There is no suggestion by the mother that X’s relationship with the paternal grandparents and the paternal uncle should or would cease if X lives in Sydney. I note that it was a consent order for X to spend more time with the father when the paternal grandparents were in Australia.
The paternal grandparents travel very frequently. There seems to be no obstacle to the paternal grandparents having personal face to face time with X in Australia when X is spending time with the father, just as they previously did when they were in Australia in 2023.
Section 60CC(2)(f): anything else that is relevant to the particular circumstances of the child
Although the child’s best interests is the paramount consideration, the court must also consider the right of parties to choose where they would like to live and the circumstances of the parties.[41]
[41] See U v U (2002) 211 CLR 238 at [82].
In AMS v AIF (1999) 199 CLR 160, Kirby J observed at [145] that:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a Court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. The paramount consideration of the child’s best interests must be weighed and balanced against that right.
In the context of compelling a parent to reside other than in their place of choice, Kirby J said in U v U (2002) 211 CLR 238 at [142]-[143]:
It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, re-partnering and reparenting. Effectively, as here, it is she who will be controlled by Court orders that require her to live, and make the most of her life, in physical proximity to the husband's whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.
As has been noted by this Court and Courts in other jurisdictions, significant effects on the mother's emotional, residential, economic, employment and personal life have an inevitable impact on the happiness and best interests of the child.
In U v U, Kirby J also observed at [146]:
Courts, exercising such discretions, should not ignore the disproportionate burden typically cast upon women by their being effectively immobilised as the custodial/residence parent.
Counsel for the father submits that the determination of this matter should be viewed through the lens that the father seeks that X live in an equal shared care arrangement. Accordingly, he invites the court to consider the significance of authorities where there is a particular focus on scenarios where there is a primary residence parent in that context.
I have already canvassed the dearth of evidence in relation to the viability of an equal shared care arrangement in Melbourne and noted that such arrangement does not solve the problem of the mother fulfilling all of her work obligations. Those two matters mitigate against such a parenting arrangement and such mitigation is therefore relevant to my determination in relation to X’s parenting arrangements. Thus, significance of the observations of the authorities in relation to impacts on the primary carer if they do not relocate is highly relevant to the facts of this case.
The mother holds a deep desire to relocate. If the court does not accede to the mother’s proposal, her aspiration and hope to advance her career and be with her family will be lost. It is highly likely that the mother will harbour some bitterness towards the father if she is unable to relocate with X. She will most likely be unhappy. As much as she will attempt to conceal those feelings, they may nevertheless inevitably be transmitted to X in a way likely to affect his best interests. This more probably than not will have an impact on the positive co-parenting relationship the parents have attained. The mother can foresee a more positive life for herself and X if they are able to move.
The mother will be confined to living in a place in which she does not wish with far less support from her family than if she lived in Sydney. She will be required to find alternate employment with such employment being able to provide her with a commensurate level of income to continue primarily financially providing for X, given the disparity in the parents’ income.
The mother has been resilient to date. There have been no adverse impacts on her level of parenting capacity. She should not be penalised for showing such fortitude.
The authorities are clear that the mother’s right to choose where she lives and works should only be interfered with if X’s best interests are so adversely affected so as to justify that interference and then the interference is legitimate only to the extent that is necessary to avoid such adverse effects.[42]
[42] U v U (2002) 211 CLR 238 at [262], Adamson & Adamson [2014] FamCAFC 232
Having regard to my assessment of all of the section 60CC considerations and the proposal of the mother, I am satisfied that X living with the mother in Sydney does not so adversely affect his best interests so as to mitigate against a relocation which provides the mother with the ability to exercise her freedom of movement and live and work where she chooses.
ADVANTAGES AND DISADVANTAGES
The advantages of the mother’s proposal of living with X in Sydney are:
·the mother will be able to live and work where she pleases;
·the mother will be able to maintain her employment and her ability to advance her career;
·X may derive benefit from continuing to have a high income earning parent;
·the mother will have the daily support of her extended family;
·X will be able to continue and develop his relationship with the extended maternal family and engage in his Country D culture fulsomely;
·X will still be able to maintain and develop his relationship with the extended paternal family;
·X will be able to maintain a close and nurturing relationship with the father; and
·the father will be able to live and work where he has chosen, that is Melbourne.
The key disadvantage to the mother’s proposal is the nature of the time X spends with the father which impacts the nature of the activities and life experiences in which they can engage together. However, that does not mean X and the father will not continue to have a close and nurturing relationship.
The key advantage to the father’s proposal, if I accept that he can accommodate his proposal around his work commitments, is the ability of the father to engage more fully in X’s life. Furthermore, X will be able to maintain relationships with both sets of extended families, as both have the capacity to travel. X will continue to be immersed in his Country D culture and heritage.
The critical disadvantage to the father’s proposal is that whilst the father’s life will not change, and he is able to continue living and working in a place of his choosing, the same cannot be said in relation to the mother. She will be forced to lead her life in a location where she does not wish to live and in a manner which she does not wish to do so, most likely until X attains 18 years of age. Irrespective of whether X lives in an equal shared care arrangement or spends substantial and significant time with the father in Melbourne, the mother will continue to parent X to a significant degree.
ORDERS TO BE MADE
Having regard to my assessment of the section 60CC considerations, and the advantages and disadvantages of the parents’ proposals, on balance I am satisfied that a relocation to Sydney with the mother is in X’s best interests.
X’s relationship with the father will be maintained and, whilst not optimal, will nevertheless be one that is close and nurturing. He will still be immersed in his Country D heritage and have access to both sets of extended families. The mother's rights of freedom of movement and to live and work where she chooses have been weighed against any adverse impact on X’s relationship with the father.
A relocation dispute is one of the most highly emotionally charged matters for parents. In any relocation case one of the parents will be very disappointed by the Court’s determination. In this matter it is the father. However, it is imperative from X’s perspective that both parents support his move to Sydney.
The court is not bound by the proposals of the parties in determining what is in the child’s best interests, subject to the principles of procedural fairness.
Parental responsibility and decision making
The parents, by the commonality of their proposal that they have joint decision making responsibility and parental responsibility, are plainly optimistic that the satisfactory level of their co-parenting and communication can remain irrespective of where X lives. I share their optimism. Both parents are devoted to X. They are united in wanting what is best for him. X loves both parents dearly. Both parents offer much to X and it is to his benefit that both parents should have input into making major long-term decisions about him.
Spend time arrangements school terms and holidays
I consider that the father’s fall-back proposal in the event that X lives in Sydney is aspirational. I repeat, there is a dearth of evidence supporting that the father can accommodate X living with him in a week about arrangement in Melbourne until X commences school.
In relation to the limb of the father’s fall-back proposal providing for weekly weekend time in Sydney once X commences school, it is difficult to accept that the mother, despite her being a higher income earner than the father, should fund all of the father’s travel and reasonable accommodation expenses on every weekend during every school term when in real terms she is the parent primarily responsible for X’s financial support. It is likely that any future child support assessment will not be of a large quantum. The father is not in a position to fund such weekly travel. Furthermore, I consider that it is not in X’s best interests that he cannot spend any significant weekend “down time” with the mother if I accede to the father’s proposal. X is unable to do so during the week because of the mother’s work commitments.
I am of the view that until such time X commences school, the time he spends with the father in Melbourne should occur on a fortnightly basis from Friday until Tuesday. In order to mitigate as far as possible a resistance of X to travel to Melbourne in future years, and to mitigate any possible impact on his education, I consider that it is in X’s best interests that once he commences school, time with the father in Melbourne should occur on a three-weekly basis.
The mother’s willingness to fund the father being able to spend time with X in Sydney is reflected in the orders. The mother’s payment is limited to travel costs and half of reasonable accommodation costs on one occasion each school term and at such other times as may be agreed between the parents. I do not include reasonable travelling expenses as that expression is too vague. The orders also take into account that instead of the mother accompanying X from and/or to Sydney, the father may wish to take up that opportunity.
For the sake of clarity, the resumption of time after school holidays shall commence in the same cycle as if the school holidays did not intervene.
Orders are made in relation to school holidays largely in accordance with the mother’s proposal. Her proposal has been refined to provide some time for X to prepare for his extended time in Melbourne and for his return to school at the start of each term.
I do not include spend time orders in the event the father decides to relocate to Sydney. It is too speculative if and when that may occur to determine what orders will be in X’s best interests at that time.
Special occasions and religious holidays
Both parents seek that X spend special occasions and religious holidays with each of them on the same day. I endeavoured to get some clarity in relation to how that could practically occur if the parents lived in different states. Again, the mother was very forthcoming to provide for X being with the father as much as possible in Melbourne on such occasions if they reasonably coincided with other times X was spending with him in Melbourne.
I also sought some clarity from Counsel as to the similarity or otherwise of which special occasions/religious holidays each parent sought in their proposals having noted that the parents had different religious holidays specified.
On the information provided, given the changing days of the religious holidays and special occasions each year, and the fact that the parents live geographically distant, it is difficult to devise orders for time on religious holidays, and other special occasions, with particularity.
The orders set out minimise travel for X on these occasions. Much will depend on the goodwill of the parents should they seek different arrangements by agreement. There is reason for both parents to remain amenable, flexible and co-operative in this regard as such occasions and holidays are more than likely to occur not only when X is in the care of the mother, but also when he is in the care of the father.
Travel outside the Commonwealth of Australia
Neither parent seeks orders providing for their ability to travel with X outside the Commonwealth of Australia. For ease of reference to the parents all parenting orders are contained in one document. Accordingly, order 9 of the orders made on 10 May 2022 and order 6 of the orders made on 19 April 2023 are discharged and replicated in the orders set out.
I do, however, ask the parents to consider in the event they agree X may travel overseas, it may be prudent for them to have orders 18 to 21 set out at the commencement of these reasons discharged by way of court order. If they only rely on authenticated consent before any such overseas travel and there is no discharge of the orders, there is no certainty X will not be prevented from leaving Australia by the Australian Federal Police.
Other orders discussed, and orders sought by one parent and not sought by the other which are not controversial, are included in the orders.
Orders are made as set out at the commencement of these reasons.
I certify that the preceding two hundred and seven (207) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal. Associate:
Dated: 24 September 2024
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