GUNSON & RODMAN

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUNSON & RODMAN

[2015] FCCA 1169

Catchwords:
FAMILY LAW – Parenting – parental responsibility – leave to relocate mother and child’s residence or to resume that which had previously existed – findings of controlling and manipulative behaviour by one parent – effect of such findings upon capacity to share parenting time and parental responsibility – concerns arising regarding reliance upon Family report – consideration of the provisions of section 60B(1) and (2) and section 60CC(2) and (3) – consideration of the effect upon the mother’s parenting ability if orders as sought by the father were made – determination that the best interests of the child were met by allowing the relocation as sought by the mother.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60DA, 61C, 61D, 61DA, 65DAA(5), 65DAC, 65DAE

Jones & Dunkel (1959) 101 CLR 298
Heath & Hemming (No.2) [2011] FamCA 749
Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439
Marvel & Marvel (2010) 43 Fam LR 348
Goode & Goode (2006) FLC 93-286
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
M & S (2007) FLC 93-313
Godfrey & Sanders [2007] FamCA 102
Champness & Hanson (2009) FLC 93-407
Hepburn v Noble (2010) FLC 93-438
MRR v GR (2010) 240 CLR 461

Applicant:

MR GUNSON

Respondent:

MS RODMAN

File Number:

TVC 442 of 2009

Judgment of:

Judge Coker

Hearing dates:

5 & 6 February 2015

Date of Last Submission:

6 February 2015

Delivered at:

Townsville

Delivered on:

8 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Hibble

Solicitors for the Applicant:

KLP Family Law

Counsel for the Respondent:

Mr Fellows

Solicitors for the Respondent:

Macdonnells Lawyers - (omitted)

Counsel for the Independent Children’s Lawyer:

Ms Keegan

Independent Children’s Lawyer:

M M Meehan

ORDERS

That all previous parenting Orders be discharged.
That the Mother and the Father have equal shared parental responsibility for decisions relating to the long-term and day-to-day care, welfare and development of the child, X born (omitted) 2002, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health; and
(d)the child’s name.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding Order 2 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with him.
That the child live with the Mother in Sydney.
That the child spend time with the Father as agreed, but failing agreement, as follows:
(a)For the entire end of Terms 1, 2 and 3 New South Wales school holiday periods each year;
(b)For the first half of the New South Wales Christmas school holiday period in 2015 and each alternate year thereafter and for the second half of the New South Wales Christmas school holiday period in 2016 and each alternate year thereafter; and
(c)For one weekend in each school term, in the (omitted)/Sydney area, upon the Father providing at least 21 days’ notice to the Mother of his intention to spend such time with the child and that the Father be responsible for all costs incurred for activities and day to day living during this time with the child.
That for the purposes of the Father spending time with the child, the Father shall be responsible for the costs of the child travelling to the Father’s location to spend time with him in accordance with these Orders and the Mother shall be responsible for the costs of the child’s return travel to Sydney at the conclusion of the Father’s time with the child.
That the Mother be responsible for booking all flights.
That the Father reimburse the Mother half of the total costs of the transport of the child within 14 days of the booking.
That the child communicate with both parents at all reasonable times as agreed between the parties by telephone, internet, Skype or any other similar means of communication, but failing agreement as follows:
(a)Mondays, Wednesdays and Fridays between 6:00pm and 6:30pm, according to the time in the locality that the child is living or spending time in, via telephone, internet, Skype or any other similar means of communication.
That wherever possible, the Father take annual leave from his employment to coincide with the child’s visits to (omitted).
That neither parent will denigrate the other parent or their family members in front of or in the hearing of the child, or allow another to do so.
All international travel regarding the child is to be approved by both parents in writing or otherwise in accordance with Court Orders.
But for the Father and the Mother, no other person, be it family member, friend or significant other be at liberty to discipline the child in whatsoever capacity.
That the Mother and the Father shall:
(a)Keep the other parent informed at all times of their residential address, landline and mobile contact telephone numbers, and will notify the other parent within 24 hours of any change to these contact details;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
That the Mother and Father authorise, by this Order, the schools attended by the child to give each parent information about the child’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child.
That the Independent Children’s Lawyer be discharged at the conclusion of any appeal period.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT TOWNSVILLE

TVC 442 of 2009

MR GUNSON

Applicant

And

MS RODMAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION:

On 25 February 2010, orders were made by consent in this court with respect to the parenting of the child, X. The orders that were agreed in relation to X, at that time aged seven and a half years, were generally to this effect:
·That X live with the mother;
·That X be permitted to relocate with the mother to the (omitted)/Sydney area in the Easter 2010 school holidays;
·That X spend time with the father at all reasonable times agreed between the parties but failing agreement, particularised prior to relocation and following relocation;
·That the mother be responsible for the costs associated with X spending time with his father once relocation occurs;
·That X communicate with both parents at all reasonable times by telephone, internet, Skype or any other similar means of communication and;
·That should the mother return to live permanently in the (omitted) area:
a)The mother will book mediation within one month of her return to discuss appropriate lives with and spend time with arrangements for X with the father and;
b)Arrangements for X will revert to those in clause 4(a) herein until further or other agreement of the parties.
Order 4(a) related to time to be spent by X with his father prior to relocation occurring and included spending time on alternate weekends from after school Friday until before school Monday or 9am Monday if Monday were not a school day.
Pursuant to the orders that were entered into, the mother relocated to Sydney with her husband, Mr C. For the next two and a half years, she lived in Sydney and the father had the opportunity to spend time with X pursuant to the orders that were agreed in February of 2010. It was, however, not the case that the father took the opportunity to spend all such time with the child, it being noted that there were obviously financial and other constraints that were placed upon him in relation to that two and a half year period.
After the relocation occurred, the mother and her partner, Mr C, married on (omitted) 2010. There are two children of their relationship, Y, born on (omitted) 2011, the second of their two children, Z, born in (omitted) on (omitted) 2012.
The reason that Z was born in (omitted) related to arrangements made by the mother prior to his birth to travel to (omitted), for the purposes of family assistance. In fact, on 27 August 2012, the mother communicated directly with the father by email and noted therein that she had received a once-off approval from the (employer omitted) to stay in (omitted) for a 12 month period with the children because her husband was really busy in this period and she was due to have another child.
She also indicated that she would be living at (omitted), which is, as best one understands, a (employer omitted) residence. The email that was sent by the mother also noted that inquiries had been made with various medical and allied health professionals in Sydney about behaviours that the mother says gave rise to concerns with regard to X and that as a result of those inquiries, X had been diagnosed with both Asperger’s Syndrome and Attention Deficit Disorder.
It was noted by her in the email, that being in (omitted) would be easier for her, insofar as arrangements were necessary to keep up therapies whilst they were required by X, because she would have assistance from other family and the situation with her husband was such that he was busy and as I understand it, was also to be overseas.
As a result of that notification, the mother was true to her word. She returned to (omitted) in September of 2012. Once the return occurred, X commenced to spend time with his father in accordance with the provisions of order 4(a) of the orders of 28 February 2010.
During the 12 month period that the mother envisaged being in (omitted), certain circumstances arose with regard to the mother’s lifestyle. She says that she and her husband purchased land in (omitted) which was to be used for the purposes of an investment property. Some concerns arose, certainly from the perspective of the father and the independent children’s lawyer that that was not exactly what had occurred, noting that the mother and her husband obtained a first home owner’s grant and further, obtained stamp duty relief as a result of a suggestion that the property was to be a principle place of residence.
It is noteworthy, in that regard, that the home’s construction was finished in October 2013 and to continue to receive the first home owner’s grant and stamp duty reductions, it was necessary for the home to be occupied for a period of at least six months. In or about July of 2013, Mr C returned to Australia from his overseas deployment. It would seem that, following that deployment, he had the opportunity to take leave and leave time was spent with the mother and the children, including X, in the (omitted) area.
The mother gave notice to the father of her intention to return to Sydney, now that Mr C had returned. It is in light of that background that the proceedings now before the court were commenced.

THE APPLICATIONS

On 2 August 2013, Mr Gunson, whom I shall refer to as “the father”, filed an initiating application seeking orders in relation to the parenting of X. The orders were comprehensive and can be summarised as follows:
·That the orders of 25 February 2010 be dismissed;
·That the parents have equal shared parental responsibility;
·That the child live with each parent on an equal shared care basis, alternating week-about;
·That special days, including birthdays, Mother’s Day, Father’s Day, Christmas Day, New Years, Holidays and the like be specifically defined, so as to ensure that the child was able to enjoy time with each parent on those special occasions;
·Changeovers were to be effected at the child’s day care or school and in circumstances where that was not able to be facilitated, was to occur at the residence of the party whose time with the child was to conclude;
·That there be provision for travel outside the state of Queensland provided that notice was given of the intention to travel at least one month prior to travel being effected and that an itinerary was provided in relation to such arrangements;
·If travel was to occur outside of the Commonwealth of Australia and included attendance at a Non-Hague Convention country, then a security of $15,000 was to be paid by the parent seeking to travel to the trust account of the solicitor for the parent who was not travelling with the child;
·That the child be permitted to communicate via telephone with each of the parents;
·That the parent having the day-to-day care of the child was to be responsible for decisions to be made during that time;
·That the parent having the care of the child be responsible for the everyday living expenses during such time that the child was in their care but that the parents be equally responsible for the payment of ongoing expenses, such as school, medical, sport and recreational expenses;
·That the parties advise each parent of any medical emergencies or issues arising in relation to the health of the child and that each parent authorise any doctors or hospitals involved in the provision of treatment for the child to ensure that the other parent is provided with information, in respect of such care;
·That the parents keep each other advised of a current residential address and telephone numbers and advise of any changes within 48 hours of any such change occurring;
·That each party be restrained and an injunction issue restraining them from denigrating the other party or members of the other party’s family and associates of the other party, in the presence of the child or allowing the child to remain in the presence of such a person behaving in that manner;
·That the parties not physically discipline the child, nor allow any other person to physically discipline the child and;
·That the parties review these orders in the event that either of the parties intends relocating outside of Queensland.
The mother filed a response to the application brought by the father. Her response, dated 13 September 2013 was, in many respects, the absolute opposite of orders proposed by the father. I say that on the basis that the mother’s position was simply to suggest that there were orders in place and therefore, the father’s application, filed 2 August 2013, should be dismissed and the father should pay the mother’s costs of and incidental to responding to the application.

ARRANGEMENTS UP TO TRIAL

The matter first came before the court on 16 September 2013. On that day, both the mother and the father were legally represented and the position taken by the parties was not to press ahead with the application brought by the father but more particularly, was not to seek to simply dismiss the application. Rather, by consent, it was agreed that order 4(a) of the orders of 25 February 2010 should be suspended and in lieu thereof, alternate orders should be made. They were in these terms:
(2)That in lieu thereof, X, born (omitted) 2002 spend time with the Father at all reasonable times agreed between the parties, but failing agreement, as follows:
(a)On alternate weekends from after school Friday until before school Monday, or 9.00am Monday if not a school day; and
(b)On the other weekend from after school Friday until 12.00 noon Saturday.
(3) That notwithstanding the orders of 25 February 2010:
(a)The Father will spend time with X for the first half of the 2013 September/October school holiday period and the Mother the second half;
(b)The Father will spend time with X for the second half of the 2013/2014 Christmas holiday period and the Mother the first half.
The matter was then adjourned but upon the basis that steps would be taken to obtain a further report in relation to the wants, needs and attachments of the child and then the matter was to be further considered on 18 December 2013.
On 18 December 2013, the matter came back before the court and was, at that time, not proceeded with other than to include directions with regard to the listing of the proceedings for trial and it was also ordered that an independent children’s lawyer be appointed, with the normal requests being made of Legal Aid Queensland to facilitate the appointment of the independent children’s lawyer.
The first family report in relation to this matter, at least insofar as is relevant to these proceedings, was the family report of Ms S, dated 4 November 2013, which was released on 19 November 2013. The report included recommendations that the parents should have equal shared parental responsibility for decisions to be made in relation to X’s long term health, development and wellbeing and additionally, specifically proposed that X should remain living in (omitted) in an equal shared care parenting arrangement.
I shall obviously come to the report in more detail a little later in these reasons. An updated report was also sought in relation to the matter just prior to hearing and that updated report, dated 1 December 2014, was released on 2 December 2014. The recommendations of Ms S remained unchanged, noting, as she did in paragraph 60, that the parents should share parental responsibility for X’s long term health, development and wellbeing and that X should remain living in (omitted) in an equal shared care parenting arrangement.
Ms S noted that if the court were to determine that X should live in Sydney with his mother, he should spend the entirety of school holidays with his father, as well as time with his paternal and maternal grandparents, except for the Christmas school holiday period, when X’s parents should equally share X’s care over the Christmas school holidays and alternate Christmases should be spent with each parent.
The matter, unfortunately, was unable to be resolved between the parties. The independent children’s lawyer, understandably, had difficulties with regard to any specific recommendations to be made in relation to the proceedings. This was notwithstanding the fact that each party, approaching trial, filed an amended initiating application or amended response which much more specifically detailed what they proposed in relation to parenting.
The significant changes in relation to the amended initiating application filed by the father noted that there was a distinction to be drawn between possible outcomes, such that alternatives were put forward in relation to whether X was ordered to live in (omitted) and what should occur then with regard to equal time or alternatively, if the mother were able to relocate with X to Sydney and there were then to be orders with regard to the father spending time with the child.

Those orders included the opportunity for a weekend, including, if possible, a long weekend in each school term in the Sydney area, as well as for continued operation of school holiday arrangements. The father also sought orders in relation to the issue of a passport for the child and the requirement that each parent take steps to obtain a passport and amended his proposals in relation to travel outside of the state of Queensland to travel outside of Australia but still with the provision of similar information prior to departure, including itinerary, length of travel and the like.
Additional changes of a more technical nature were also made in relation to issues, for example relating to communication between the parents, it being more extensively noted that arrangements should be made not only for telephone communication but for other forms of electronic communication, including Skype, FaceTime and the like. The orders were comprehensive.
The amended response filed by the mother on 23 January 2015 understandably provided much greater particularity with regard to what was proposed in relation to the parenting of X. That was necessary in light of the fact that the mother’s original response simply sought the dismissal of the father’s application but now, obviously, required there to be specific information provided as to what was proposed. The amended response detailed the orders sought in the following terms:
·That the parents have equal shared parental responsibility in relation to X;
·That the amended application filed by the father be dismissed;
·That the child live with the mother in Sydney;
·That the child spend time with the father as agreed but failing agreement, as particularised to include school holiday time as well as for weekend time in each weekend in the (omitted), Sydney area upon the father providing notice to the mother of an intention to spend time with the child;
·That if relocation were not agreed, that the child live with the mother in (omitted) and that the child spend time with the father at all reasonable times, including each alternate weekend from after school Thursday until before school Monday, as well as for there to be provision for special days, including the parties’ and the child’s birthday, Christmas Day, Boxing Day, Father’s Day, Mother’s Day and the like;
·That each parent will give the other the first opportunity and reasonable notice to babysit or care for the child during times that the child is in the care of the other parent if it is required for a period of 24 hours or more and that the parents will accommodate requests, from time to time, for the child to spend time with the other parent on special occasions;
·That the child communicate with both parents at all reasonable times by way of telephone, internet, Skype, or similar other electronic means of communication;
·That neither parent denigrate the other parent or their family members in front of or in the hearing of the child or allow another to do so;
·If the child lives in (omitted), then each party be restrained and an injunction issue restraining them from removing the child from the North Queensland region for more than 72 hours without the prior written consent of the other party and that all international travel regarding the child be approved by both parties in writing or otherwise, in accordance with court orders;
·That the parties authorise the child’s school or other educational institution, sporting institution or medical practitioner to provide information to each parent in relation to the child, as well as to provide for each parent to be entitled to attend to the child’s school and other institutions or organisations providing extracurricular education or activities and to participate and attend events and activities generally attended by parents;
·That only the mother and the father be at liberty to discipline the child in whatsoever capacity and;
·That the father be liable to pay the mother’s legal costs on an indemnity basis.
As I say, the orders proposed were of a far more comprehensive nature, both from the perspective of the father and the mother and it is understandable that, in light of the recommendations that were made and because of the hotly contested issues that remained between the parties, that it was proper that the orders be so comprehensive.
As indicated, it was noteworthy also that the independent children’s lawyer was not firm in relation to any specific position with regard to the parenting of the child. However, in the outline filed on behalf of the independent children’s lawyer on 3 February 2015, it was noted as follows:
The family report recommends that X remain in (omitted) in an equal shared care arrangement.
Pending the testing of the evidence, the ICL supports this view.
During the hearing, it was noted that the independent children’s lawyer formed the view that the position had crystallised and as it was indicated at the commencement of the second day of hearing:
“The Independent Children’s Lawyer does not support relocation and X should remain in (omitted) in a situation of shared care”.
As a result of that position of the Independent Children’s Lawyer, and it was generally understood prior to the commencement of the hearing but crystallised at the commencement of the second day of hearing, the matter proceeded to require full determination.

THE PARTIES AND THEIR WITNESSES

I had the opportunity obviously of considering the evidence of all of the parties and witnesses to the proceedings. From the perspective of the father, only the father’s evidence was called in relation to this matter and no other witnesses were asked to present evidence. From the mother’s perspective, there was affidavit evidence by her and also evidence from her husband, Mr C, and also from the mother’s mother, the maternal grandmother, Ms J.
I shall come to their evidence, as well as that of the parties and of course, of the family reporter in more detail shortly but it is also important to note that there was criticism of the father’s case, at least from the perspective of the mother, because of his failure to call his partner, Ms H. In the final submissions that were provided in relation to the matter, it is noteworthy that counsel for the mother noted that there was a “fatal weakness in the father’s case due to his failure to call his de facto partner or one or other of his parents”.
It was noted in the body of the submissions on behalf of the mother, that the father’s de facto wife, the mother of his younger child, as well as his parents, sat in the public gallery for the trial and yet provided no evidence, notwithstanding the fact that they would clearly all have some significance in relation to the future life of X. In that respect, I was asked to draw the inference that the failure to call any of those persons would mean that their evidence would not have assisted the father’s case.
In that respect, I was, of course, directed to the decision of the High Court in Jones & Dunkel (1959) 101 CLR 298. I shall come to that particular aspect of the matter during my consideration of the evidence and its application in this matter.
I turn then, as I must, to the evidence of the parties, as well as to the evidence of Ms J and Mr C, and in due course, to the evidence of Ms S. Insofar as Ms J was concerned, there was not a great deal of evidence called from her in relation to this matter. She acknowledged that she had a good relationship with her daughter, and that her daughter confided in her, and acknowledged, as a matter that became significant in relation to these proceedings, that she was aware of there being difficulties in the marriage between the mother and Mr C.
She indicated that from her perspective, at least, the difficulties arose after the commencement of the proceedings, and the requirement that the mother remain in North Queensland, notwithstanding, that her husband was based in New South Wales, and because of his commitments to his work, was required to remain in New South Wales.
The position of the maternal grandmother was generally one supportive of the position of her daughter. It was an understandable position, and I gained the distinct impression that whilst Ms J was a supportive mother and grandmother, she was not overly involved in the day-to-day life of the children or the mother. In that regard, for example, it was noted that when asked by counsel for the independent children’s lawyer, how often she visits the mother or sees X, she indicated that she might see her one or two times a week, depending on her work and the mother’s commitments with the children, but that she did see her every weekend, seeing X each alternate weekend, because on the other weekend, he was with his father.
She was also asked about her observations of X, and what she suggested might be the circumstances that gave rise to some concerns with regard to the child. She certainly indicated that she believed X to be an intelligent child, but that sometimes he could be very childlike and socially awkward. Rather insightfully, she noted that whilst X was saying things to her, it may be the case that X was indicating to her what he thought she might want to hear.
When asked about the circumstances relating to the marital difficulties between the mother and Mr C, she noted that as she understood it, “their separation is not a permanent thing.” And further, her assessment in respect of the relationship was to the effect, “If this is worked out, they’ll reconcile and become a family again.”
It may be that Ms J’s assessment in relation to those aspects was a little hopeful, but I was generally impressed with Ms J as a supportive and caring grandmother, realising her role in the life of her daughter and her grandson, and appropriately acting in relation to the support of the child. What she knew or didn’t know about the purchase of the property in 2013, as well as what she did or didn’t understand were issues in relation to the wellbeing and health of the child were not matters of great import, in relation to these proceedings.
It was noteworthy that the independent children’s lawyer was not so enamoured of the evidence given by the maternal grandmother. At paragraph 51 of the independent children’s lawyer’s final submissions, it was noted that Ms J had misled the Court as to the status of the marriage, and it was noted that there was no credible explanation as to why she would fail to depose to the fact that the couple were separated. From the perspective of the mother, a different approach was taken, and it was submitted at paragraph 6.1 of the submissions that there was no basis for the Court to reach any critical observations in respect of Ms J or, in fact, in respect of Mr C.
I am more inclined to the view, certainly, with regard to Ms J, that there is little of an adverse nature that could be raised in respect of her evidence, and in particular, that whatever might or might not have been declared by her, in respect of the relationship between the mother and Mr C started from a limited base of information held, and that her evidence would be of little assistance in that regard.
Insofar as Mr C was concerned, I was enormously impressed. His evidence in relation to the matter was, I thought, given in a forthright and respectful way, though not meaning respect to the Court but rather, respect for the process, generally, and the need to consider the best interests of X.
The suggestion that Mr C was, in some way, deceptive or misleading in his evidence, did not, in my view, come as a result of anything contained within his affidavit or from his oral evidence. If anything, I thought his oral evidence reinforced the hopes and expectations that Mr C had with regard to the relationship with his wife. He indicated that notwithstanding the pressures that were upon them as a result of the litigation, and the resultant separation between (omitted) and Sydney, he had remained faithful to his wife, and was supportive of her and her decisions, and was willing to work through the difficulties in their relationship.
When asked by counsel for the father, whether their separation had caused concerns for him, he had indicated that it was the mother’s decision and when asked what were reasons, he explained that the mother had indicated that she couldn’t leave (omitted), because she couldn’t leave X.
He was then asked whether this indicated that they were in a committed relationship, and the answer given by Mr C was telling in the extreme. He said:
“She chose the children over me. I respected her decision.”
He was asked whether he had pleaded with her, and he indicated that he had with regard to the resumption of their relationship prior to acknowledging that they had separated, but notwithstanding that, he respected her decision in relation to putting X ahead of their relationship.
Mr C was an enormously impressive witness. He was cross-examined by counsel for the father about whether he would work to save the marriage by coming to live in (omitted). He indicated that both, he and the mother, had raised the issue and had discussed it, but that he was, as he put it:
Very confident that the marriage will survive when they were back together.
And when asked whether he could come back, he answered, I thought, most openly and honestly, indicating that he had a good job and a mortgage, and most significantly, indicated he had three children to provide for.
I have absolutely no doubt as to the genuineness of Mr C’s beliefs in respect of the resumption of the relationship with the mother and more significantly, am absolutely convinced of his determined attitude to the support of his three children. He includes X in that number, and I’m satisfied beyond any shadow of a doubt that that is a genuine and accurate reflection of the attitude and responsibilities that Mr C believes that he holds, in relation to the obligations of parenting.
When cross-examined by counsel for the independent children’s lawyer about that answer, given with regard to the three children, he was asked whether he considered himself the primary father figure, and he immediately and, I think, forthrightly answered that he was one of the father’s in this relationship. And he acknowledged, again, that he had three children, and was responsible for all of them.
I was extremely impressed by Mr C. He gave the distinct impression that he was a man committed to his relationship, committed to his responsibilities to his family, and also committed to his job and the responsibilities that arose in relation to that. It is hard to imagine a more impressive example of those who take on the role of (occupation omitted).
Insofar as the parents were concerned, I had the opportunity, obviously, to consider the evidence contained within the affidavits filed by each of the parties, and also the opportunity to see lengthy cross-examination of both the mother and the father. I was troubled by a considerable amount of the evidence given by the father. It’s noteworthy that in submissions that were made on the part of the mother, some criticisms were given as to the attitude of the father to the proceedings.
At paragraph 5.12 onward of the submissions, reference was made to the questions directed to the father about his consultation with Dr F, the child’s paediatrician. After a series of questions in relation to inquiries made by the father of Dr F, and it was certainly suggested that they were late in time, the final question relating specifically to the length of time of a consultation gave rise to concern. The question,
And how long were you with Dr F?
- elicited the response -
I’ve never been with any man.
It was a ridiculous answer. Counsel for the mother sought to consider what possible explanations there might be for that answer and gave the father in one of those explanations the benefit of the doubt, suggesting that he might suffer from an intellectual deficit. Of course, there is no suggestion that that is the case. Nor was it the case that the father was confused or nervous. He was deliberately obtuse and he was seeking to make a mockery of the proceedings. It did him no credit.
But if anything, it showed a glimpse of what really was going on, in relation to this man’s life. He described himself as laid-back. I’m not of the view that that is the case. He described himself as easy-going and relaxed, but the impression I get is that he is far more calculating in what he does and, obviously, that that has had serious consequences in relation to these proceedings.
I make reference to that exchange in cross-examination because I noted much earlier in cross-examination, a general cockiness or smart-alecky approach on the part of the father. The second question directed to him in cross-examination by counsel for the mother was to the effect –
Who are those persons in the back of the Court?
His response was -
My lovely fiancée and my parents.
The fact is they are relevant to these proceedings and they were significant in relation to the care of the child. Ms S certainly touched upon the significance of the relationship between the father and Ms H in her report.
It is troubling in the extreme, that there was no affidavit material filed on behalf of any of those persons. The suggestion on the part of the independent children’s lawyer that there should be nothing adverse considered in relation to that failure to provide evidence falls flat, when it is clear that their evidence, either as to their ability to support and assist the father, or of their observations of the father’s capacity would be of particular significance. I was troubled by the failure of such evidence to be made available in relation to the matter.
It was also noted by counsel for the mother that the absence of affidavit evidence, or the ability to cross-examine persons who would be significant in the life of a child, is seriously damaging, if not fatal, to a claim for sole care or shared care. Whilst I do not think that it would be fatal to a claim, it is troubling that such evidence was not available in relation to the matter when, clearly, the father’s partner and his parents were intimately concerned with and involved in the proceedings, attending at the Court, but did not provide evidence.
The suggestion by counsel for the father that any weakness in the father’s case in not calling witnesses, such as his partner or his parents, was illusionary, is surprising in light of other points contained within the outline. Counsel for the father notes:
In a case where the ability of the applicant to care for X is not challenged, what is the point of calling witnesses to say, ‘Yes, he can care for X. And I can care for X’.
It may have been significant if the dispute focused on the ability of the father or his partner to care for X. The litigation was focused on the true dispute where X should live.”
However, it is noted at paragraph 2 of the final submissions filed on 6 March 2005 as follows:
The case is complex but ultimately one, where the focus has to be on X. Any decision whether to allow the mother to return to Sydney or to make her stay in (omitted), has significant consequences on people close to X.
To not then call those persons who would be significant if X were to remain in (omitted), or to comment upon their assessment, or views as to the consequences for X, if a move were to occur, smacks of indifference in relation to what should actually occur. I do not mean, of course, indifference in the sense of not caring whether X should remain in (omitted) or be allowed to relocate with his mother to Sydney, but rather indifference in relation to the presentation of the case, because of the absolute reliance placed upon the family report provided in relation to this matter.

Mr Gunson was not, I thought, an impressive witness. He was vague when it suited him to be vague, indicating, for example, that he did not recall the first report of 2009, relating to the circumstances which gave rise to consent orders being made in 2010. Or the fact that one of the considerations that was included there was that the mother and Mr C would be required to be in Sydney, but that they would not then be subject to reposting because of Mr C’s position within the (employer omitted).
Further, and more recently, and therefore significantly, was when Mr Gunson was asked about whether he had relied on Ms S’s report and the doubt she had expressed with regard to a number of matters, so that he had decided to stand back and wait for the independent children’s lawyer’s view. He said that that was not the case. He was challenged in respect of that and asked whether he denied that he had chosen to do that. He specifically said that he denied that, and then was taken to his own trial affidavit where he indicated that that was exactly what he had chosen to do.
The impression I gained, unfortunately, was that the father was opportunistic. He would say whatever was, he thought, appropriate at the time. As well, I gained the impression that he would also do or not do whatever he thought might advance his position, be it in relation to the parenting of X or otherwise. There can be no other explanation for the fact that he sat back for a year and did nothing in relation to inquiries with regard to the child’s heath issues.
He failed to acknowledge that those issues were there, or to make any inquiries about them, and then, only at the last instant, made inquiry and determined that he was no longer of the view that the child did not experience significant health concerns.
Specifically, when asked about those issues with regard to X’s health, he was asked whether he was aware of one of the strong arguments in relation to the matter, and the concerns of the mother related to his unwillingness to accept X’s diagnoses as a serious issue. He said that he was aware of that, but then went on to note that he was, “Not a medical expert.”
Of course, as I have already indicated, he was given the opportunity to speak to Dr F before the first report by Ms S was prepared, and it was suggested that he liaise and consult with Dr F after that first report was done in November of 2013. Notwithstanding that, a year passed before he took any steps, other than, as he said, to make inquiries on the internet.
In that regard, he gave, I thought, one of the few genuinely insightful answers in relation to this matter when asked whether he thought that consulting the internet was better than hearing it from a paediatric specialist or as it was put to him, from the “horse’s mouth”, and he said, "No. Obviously, I was stubborn."
Quite simply, Mr Gunson was not the cooperative, easy-going parent that he sought to paint as his persona. I was much more of the view that he knew very much what he was doing and that he specifically set out to be obtuse and difficult, as well as sarcastic or smart in many of the answers given in relation to these proceedings. He acknowledged that he had "fudged the issue", in relation to X's diagnosis in relation to this matter, and when asked whether he thought this might have put pressure upon the mother, he did not accept that that could be the case.
When asked whether he realised that seeking equal shared parental responsibility meant communication had to be effective between he and the mother, and whether hedging or fudging in relation to something as fundamental as the child's health would have an effect on the mother, he said, "No." He was then specifically asked by counsel for the mother whether he had any insight into how such a position taken by him might affect the mother. His response was:
How could it affect her?
The lack of insight and the lack of appreciation of the consequences of his actions upon the mother and her capacity to parent was troubling in the extreme.
The father was not only vague but dishonest specifically in relation to the commencement of this litigation. It was suggested in material that the mother had permanently moved to (omitted) from Sydney in September of 2012, when that was not the case. The independent children’s lawyer in submissions in relation to this matter appears to place little weight upon that particular aspect of the matter, however, in my assessment, it is a significant issue in relation to these proceedings in that it clearly shows the knowing and manipulative nature of the father and of the fact that he would act in a manner which would seek to advantage him, notwithstanding that he knew exactly the circumstances that existed for the mother and the situation that she found herself in.
In that respect, I was troubled that the father was, as described by the mother and generally accepted by Ms S, ‘passive-aggressive’. It is noteworthy that in regard to the suggestion in respect of the father as being passive-aggressive it meant that he would act in different ways at different times, but all designed to achieve a goal that he set out to achieve. In that respect, the father forgot to make reference to a very specific piece of correspondence forwarded quite properly by the mother, and as a result of it, gained an advantage with regard to pinning the mother down to (omitted).
To that extent, the father's actions have, in my assessment, directly had some responsibilities for the difficulties that now exist in the relationship between the mother and Mr C. It is disturbing that that should have been the case and reflects poorly upon the father, but more particularly, indicates the difficulties that would continue from the perspective of the mother, in relation to dealing with the father in a situation of trust and respect. The father has not shown that he could be trusted.
In fact, when specifically asked whether he had manipulated the mother's temporary return to (omitted) to his advantage, he responded, "I've used those circumstances. Yes."
The father was not an impressive witness. The father was not willing to work with the mother, but rather would undermine her. Nothing else in that regard needs to be seen or stated, other than the fact that there was a legitimate diagnosis in relation to the child suffering from both Asperger's syndrome and an attention deficit disorder, and Ritalin was prescribed to be taken by the child. The father was not required to administer that, because it related to weekday, rather than weekend usage, but continued to undermine the position of the mother, and of course in some respects, the good health of the child, by the father continuing to engage in behaviours which simply indicated to the child that he didn’t believe that he was ill, and didn’t believe there was a need for the medication to be taken.
Ms S's observations of the father were also telling, in respect of the fact that the father apparently took no steps in relation to controlling X when he was making comments of a disparaging nature in relation to his mother. I have no hesitation in finding that X was of the mind to think that such behaviour was allowed in the father's household, and in fact was countenanced by the father as appropriate.
It was also noteworthy that Ms S observed that the father was not responsive in relation to those comments until she specifically pointed out that it was not appropriate behaviour. When asked whether he was not alert to such situation, because it was such a common occurrence in his house, his response was that, "Ms S reminded me it was part of learning as a parent." With respect, it was something that should be been known inherently from years gone by, and I was troubled by that particular aspect of the matter as well.
The father indicated on a number of occasions that he was learning about being a parent. When asked whether he had insight into the obligations, responsibilities and requirements of parenting, he indicated that he did, and that he was taking each step as a learning process. It was interesting and noteworthy however that when asked by counsel for the independent children’s lawyer whether he had ever discussed with the mother X's routine in her house and matters that might be able to be done jointly or similarly by the two of them, he said, "No."
He was asked however, if he had more time with X would he consult with the mother, and he replied, "Definitely." The answer was, I thought, the required answer, but not the answer that properly reflected the father's position in relation to the matter. If he really had insight into the best interests of this child, it would not be a situation where he remained, "the good time dad" and therefore did not need to be aware of routine, but rather would have been involving himself much more directly in aspects of the child's life, not only to learn what the mother did, but also to have some input in respect of what might be more appropriate or better ways to deal with issues that arose in relation to the parenting of the child.
As I indicated, my assessment of the father was not one of a laidback and carefree father, but much more of a person who was far more calculating and manipulative in what he did in relation to this matter.
He was either lacking in any insight whatsoever, as to what might affect his son, because his actions directed towards the mother affected her capacity to care and provide for the child, or more cynically still, he knew exactly what would be the consequences of his behaviours, particularly in respect of issues such as medication and the like and failed to be cooperative in any proper way in relation to dealing with such issues, so as to gain some perceived advantage to these proceedings, including no doubt a position taken by X when expressing a wish as to where he wanted to live, of thinking that time with his father were all the good times, and that those times with the mother were far more those that involved the drudgery of day-to-day life.
Most particularly, I was troubled in the extreme by the manipulative and controlling nature of the proceedings brought by the father in relation to this matter, and specifically the acknowledgement given by the father that he used the circumstances of the mother's temporary return to his own advantage.
I turn now to the evidence of the mother. There were obviously concerns that arose in relation to her evidence. The fact that she had failed to fundamentally provide information as to the situation with regard to her relationship with her husband, Mr C, was troubling in the extreme. It was noteworthy, however, that when information was given to her current solicitors and barrister, they immediately took the proper stance of advising the court of the position.
The mother explained that she had not further mentioned the matter because she had been advised by her previous solicitors that it was not necessary to address such issues. Counsel for the mother noted that the mother's failure to be candid in relation to such a fundamental issue cannot be excused, but as submitted, it could be understood in circumstances where the mother's sworn evidence was that she had disclosed it to her previous solicitors, and acting upon their advice, had not made any further reference to it, because they had told her it was not relevant.
Whether that was or was not the case is unclear, but she made the disclosure, waived privilege, and neither counsel for the father nor counsel for the independent children’s lawyer or the independent children’s lawyer sought to challenge that evidence by calling for the previous solicitor's file or requiring the previous solicitor to appear.
Additionally, the mother was not evasive when questioned in respect of the relationship with her husband. She certainly indicated that they were physically separate, that there were difficulties that they were experiencing as a result of being so far apart, and that they were working on their relationship. As was emphasised by counsel for the mother, the mother whilst not referring to a breakdown in the marriage or a legal separation, certainly indicated to Ms S that the relationship between she and Mr C was a bit of a mess, that the two younger children, Y and Z, were experiencing difficulties as a result of believing that their father "lived in a computer", and that the mother felt trapped between X and her husband.
Whilst it certainly would have been preferable for there to have been more complete and frank disclosure in relation to the proceedings, I am not of the view that the mother set out specifically to mislead the court through what she failed to say, but rather it was through a lack of understanding of what might be required, in relation to the matter.
In that respect also, it should be noted that whilst there were, to some extent, concerns with regard to the mother's evidence, for example, with regard to her current circumstances, the best indication that was given in relation to all inquiries that were made, with regard to the mother's current status, insofar as not attending work, arose correctly from what the mother had said and not from what had been understood by any of the other parties or legal representatives to the proceedings.
The mother gave me the impression that she was at her wits end in relation to this matter. She was juggling a number of difficult circumstances and trying to make the best of it. Interestingly, the very first lot of questions that were directed to the mother by counsel for the father emphasised that exact point. She was asked whether, when the father comes to collect X, she will call out to him words to the effect, "Mr Gunson's here". She said that she had on occasion, and when asked whether she didn’t call him Dad to X, indicated that that was the case. When asked however why she would call him Mr Gunson, she related it very truthfully, I thought, to the circumstances that existed within her house.
She said words to the effect:
Because my three year old thinks it's her father, and then becomes upset. I explained to the father that I called him Mr Gunson if I called out to X -
but that she always encouraged X to call his father Dad. It had a ring of truth, and it also reflected the difficulties that the circumstances as they currently exist cause for the mother, for X, but also for Y, Z and no doubt Mr C.
The mother was frustrated by the circumstances she was in. It is hard to imagine how that would not be the case when acting, she believed, in an appropriate way and giving notice to the father of an intent to return to (omitted) for 12 months has meant that for another year and a half she has been required to remain in (omitted). And it is obvious from what has already been shown in the evidence that has fallen in relation to this matter, it has had the most dire consequences for the mother and her relationship with Mr C, but also of course has had serious and significant consequences for her other two children, X's younger siblings.
Their relationship with their father and their mother's capacity to care for all three children are directly affected as a result of the circumstances that the mother now finds herself in, and the fact that as a result of the decision that she made in August of 2012 to return to have family support whilst her husband was deployed, her family has, in many respects, been torn asunder. It is understandable that the mother would be distracted by the proceedings and struggling in relation to the situation that she finds herself in.
Unfortunately, I gained the impression that the father and, to some extent, the independent children’s lawyer sought to find fault with the mother, because she had not dealt with the difficult circumstances that she found herself in. She was asked by counsel for the independent children’s lawyer about the fact that X was moving toward puberty and that he would need a male role model. The mother quite properly acknowledged that would be the case, and when asked whether he would desire to spend time with his father, she indicated that it was already occurring and would continue to occur, no matter what orders were made, and acknowledged that there would be benefits from the father spending time with the child, as there was with any child spending time and having a relationship with both parents.
She was then asked whether X needed constant routine and stability, and she indicated, quite properly that that was the case. When asked whether it was important that there then be constant time with the father, she answered, I think very honestly, that she was not sure how to answer. And when it was put to her that it was not so important, she didn’t suggest that that was the case at all, but rather that all issues with regard to routine stability and time were important considerations.
The mother has had difficulties in relation to the parenting of the child. She has, however, at all times in my assessment, acted appropriately, most obviously exampled by the fact that when she returned and even before returning to (omitted) in September of 2012, she notified the father of the return, and sought to put in place arrangements with regard to ensuring that X spent time with his father. It is noteworthy that she went out of her way to ensure that that was done, being mindful of the needs of this little boy, whilst whatever might have been the circumstances, for two and a half years before her return, the father's involvement in the child's life had been significantly less than what was available to him as a result of the orders of February 2010.
Suffice it to say that I was most impressed by the mother. I gained the distinct impression that she was a genuinely caring and protective mother who had acted in an appropriate manner in all the circumstances and in fact as a result of the actions that she had taken, in attempting to comply with the terms of the orders had found herself in a situation which must have been virtually intolerable. She returned to (omitted) to have family support. She acted appropriately in advising the father of that. The father manipulatively and deceitfully then forced her to remain in (omitted), leading directly to the very difficult circumstances that now exist in the relationship between she and her husband.
It is all well and good to suggest that there should be equal shared parental responsibility, but one struggles to imagine how that could feasibly work, when the father's own behaviours and his own acknowledgement is that he will act in a manner which is deceitful, manipulative and controlling and then suggest that he is learning still as a parent and that the circumstances will be improved. I'm not at all convinced that that is the case and nor am I of the view that the mother could not reasonably expect there to be cooperative arrangements in relation to the parenting of this child, if it were a week about arrangement.
The much greater concern that would arise in relation to the proceedings is that communication would remain difficult and the person who would suffer most as a result of those difficulties would be X, closely followed by the mother, without there being any real impact upon the father, and in fact if anything, a concern that the father would see a deterioration in the mother's capacity to cope as a basis upon which he would be able to further seek the manipulation and control of X, including to seek to obtain greater opportunities for time with the child.
I was impressed with the demeanour of the mother, and whilst there were, as is almost invariably the case, criticisms that might arise in relation to decisions made and action taken, the mother has generally acted appropriately.

THE FAMILY REPORT

I turn now to the evidence of the family report writer. It was noteworthy in relation to this matter that the position taken by the mother, no doubt, with the advice of her solicitors and counsel, was one of a determined rejection of the evidence of the reporter and the basis upon which reliance could be placed upon those reports. In that regard, I must indicate that I also was troubled by the reports and the position taken by the report writer in relation to this matter.

I do not for a moment suggest that there was any intent on the part of Ms S to be anything other than professional and proper in the recitation of her evidence and the formulation of her opinions in relation to this matter, but there was an element of concern that arose in relation to the report. For example, in the first lot of questions directed to Ms S by counsel for the mother, questions were asked about the information that the report writer had received, the documentation perused and the like, and the reference in the report to the observation of X with the mother and Mr C, and the interview with Mr C on 7 November 2013.
That simply cannot be correct, noting that the report is dated 4 November 2013. Ms S acknowledged that, but then when asked if she could provide her notes for clarification, particularly in relation to something as fundamental as to when observations and interviews occurred, she indicated that she couldn't find them. Whilst errors occur and difficulties arise, it is obviously an issue that gives rise to concern and certainly would give rise to difficult perceptions on the part of the mother, as to the position taken on the part of the Ms S, when such fundamentally important documents, certainly from the perspective of the mother and what she considers to be in the best interests of the child, were not able to be produced.
There were also concerns raised with regard to the fact that there is no indication of the time spent in relation to interviews being conducted, and as was submitted on the part of the mother, such a failure to provide information as fundamental as the time spent with each of the persons' interviewed does preclude fair testing of the balance or comprehensiveness with which the interview process was conducted.
Ms S's response to the questions in relation to that particular issue troubled me to some extent, because the indication by Ms S that she was "independent", smacked of defensiveness. With respect, to be unable to indicate how much time was spent with a witness gives rise to the ludicrous situation that might indicate that some hours were spent with one party and only a matter of minutes with another, without there being the opportunity to fully explore why that might or might not have been the case.
Similarly, there was concern raised with regard to the fact that the second report was prepared a little over a year after the first report, and there were significant documents filed between the filing of the first report on 4 November 2013 and preparation of the second report on 1 December 2014. Those documents were not the subject of consideration. To suggest that it was not done because it was not "regulation 7 policy", gives rise to concerns, not so much that it might be the policy, but that other extraneous information was provided, which in my assessment was in fact incorrect, for example, the mother's current circumstances with regard to her employment, which was taken as true and correct, and not further inquired into. There was, on the face of it, real issues that arose in that regard.
Similarly, and I must say, with respect, of a most concerning nature, was the determined response by Ms S in relation to the time leading up to the preparation and delivery of the second report. Ms S was asked whether she wanted to take holidays, and that therefore there were some time constraints in relation to the time that interviews could be conducted, inquiries made and the report prepared. Ms S replied:
No. The mother had an exam.
Ms S was then asked words to the effect, "Didn’t you tell Ms M that there was some doubt if you can do the report, because of your holidays?" Ms S replied with the words to the effect, "No. I did not advise of that."
Subsequently however emails were produced in relation to the issue of whether there was pressure in relation to the timeframe available, and Ms S only acknowledged then that there had been an email exchange between she and Ms M. Unfortunately, the impression I gained of Ms S in this particular instance was that she was somewhat defensive and, with respect, may not have been therefore as comprehensive in the inquiries that could properly and should properly have been made, in relation to a matter of such importance to both of the parties.
It is understandable that the mother was concerned about issues in relation to the opinions expressed and the recommendations made. Quite simply, the mother's concerns in relation to this matter and the evidence given by the report writer is understandable. As was submitted, problems can be identified as to the "creditability" of the process followed by the report writer in this instance. At paragraph 7.2 of the submissions filed on behalf of the mother, a number of matters were touched upon, which gave rise to concerns.
They included the fact that Ms S accepted and relied upon external information with regard to the mother being on unpaid stress leave, when in fact that was not the case, and it was not something that was inquired into. A criticism was made, and in this instance, which was justifiable, of Ms S, that she did not even give the mother the courtesy of an opportunity of being able to reply to the allegation, and that Ms S simply recounts it as a fact.
Additionally, information which was derived from interviews, which would be at least on the face of it to some extent of concern with regard to the father, was not included in the reports that were prepared, including particularly that the father had told X that he did not agree with the diagnosis and had not taken steps to make inquiry of the child's paediatrician until the eleventh hour.
Concern was raised as to whether certain facts were accepted as true, whether they were or not, and other facts which were acknowledged were not included as being relevant, in relation to assessment. Whilst I, of course, accept that there are many instances where there is a huge swath of evidence to be considered, matters of such significance do need at least to have some reference made to them.
Further, and I must say troublingly, there was concern understandably expressed by Ms S about the fact that the mother indicated that there was a diagnosis of X suffering from both Asperger's and Attention Deficit Disorder. Ms S challenged that medical diagnosis indicated by the mother as being the case, when in fact the evidence that has been produced in relation to this matter, and which could and should have been properly considered by Ms S did, in fact, indicate that the dual diagnoses of Asperger's and Attention Deficit Disorder had been made by a qualified medical specialist.
The fact that the mother believed the medical advice and the father had, as he indicated, no medical expertise and had not made any inquiry but seems to have been given greater weight than the position taken by the mother in relation to the matter, is troubling in the extreme.
Ms S is a report writer of vast experience and a psychologist with an enormous amount of experience. However, in this instance, there are unfortunately, I find, legitimate concerns that arise with regard to the findings and recommendations. That is particularly significant when, as was emphasised by counsel for the mother, there could be legitimate criticism of the conclusions and recommendations of Ms S, notwithstanding the many points emphasised in relation to the matter.
Relating to the first report, counsel for the mother notes that there was significant dispute between the parents concerning the child's diagnosis and the father's statements that he had told the child of his disagreement with the diagnosis. That Ms S expressed her opinions as to her diagnosis and recommendations with regard to further inquiry, notwithstanding that she had not seen nor sought information with regard to the current expert specialist diagnosis in relation to the child is troubling. Additionally, the evidence consistently and to this day reflects the difficulties that the parties have in being able to communicate with each other, and certainly to make decisions in relation to the day-to-day arrangements and responsibilities in respect of the child's best interests and needs.
Further and of concern is the fact that Ms S herself noted that the father was reticent to actually say what he really believed and was therefore as submitted, "willing to tailor his evidence by reference to what he thought the court or Ms S might want to hear".
I have already indicated in these reasons that my assessment of the father is that such circumstances still exist and that he is not as laidback as he would suggest, but much more is, in fact, manipulative, controlling and very much aware of the consequences of his actions.
Ms S appears to have failed to address at all in the report any issue with regard to the effects upon the mother, and therefore her capacity to provide for and to meet the needs of this child, if she were to remain in (omitted). There is also no consideration of X's relationship with his brother and sister, the effects of the permanent breakdown, if that is to occur in the relationship between the mother and Mr C, and the future consequences for the relationship between X and his younger siblings, if in fact a situation arose where orders might subsequently be made in respect of those children not living in the same locality as X.
Unfortunately, the evidence along with the concerns raised in relation to this matter troubles me with regard to the report and the recommendations. At the heart of this issue, and it is submitted on the part of the father, is a focus on X, and the determination of what might be the consequences for all those close to X, should the mother be allowed to return to Sydney or should the mother, because of orders made in relation to the parenting of X, be required to remain in (omitted).
I am not of the view that the report in this particular instance is of such assistance to me as to make a determination with regard to that particular matter, other than to say that whilst many issues have been addressed and commented upon in a most professional way, there does, upon the face of it, appear to be issues which give rise to concern as to whether there has been, as submitted on the part of the mother, a "holistic examination" of all such issues in relation to the parenting of the child.
Unfortunately, I am therefore not as assisted as might normally be the case, with the reports and their recommendations. As indicated earlier in these reasons I am more assisted by the assessment arising from the evidence as it fell.

THE LAW

I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, relating to the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010, his Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136]The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137]Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138]But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139]The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140]No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141]The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142]Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143]“Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144]Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145]Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146]Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147]A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148]The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149]If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150]The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151]An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152]Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75. In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76. We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.

Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
It is not exactly a situation of pervasive and intractable conflict that arises in this matter, but rather, I would assess, one of poor communication between the parents and different personality traits which lead to an inability to reach agreement. There is also, as I have identified, the difficulty that arises from the father’s uncooperative behaviours. The assessment of a passive-aggressive approach, and the consequential difficulty in reaching any agreement is a matter of concern, notwithstanding that both parties previously consented to orders relating to equal shared parental responsibility and both still suggest equal shared parental responsibility as an appropriate arrangement for making decisions in relation to this child’s long-term care, welfare and development.
The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child. I am not so confident that there is such an indication in relation to this matter.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Clearly, consideration does need to be given to those matters set out in section 61DA. But in this instance, like so many, there is also the specific need to consider the effects and possible consequences for the children and the parents of orders being made which will result in relocation of the children from where they currently primarily reside, or alternatively, continued residence at the current location, but with significant changes in relation to opportunities for time with one parent or the other.
In Heath & Hemming (No.2) [2011] FamCA 749, decision of Justice Kent, his Honour when discussing a parenting case, went on to comment about the decided law in respect of parenting decisions, and specifically addressed the approach to parenting cases involving a proposed relocation. His Honour said, at paragraph 87, the following:
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
In paragraph 87, his Honour detailed a checklist of those matters that need to be considered and, of course, they are reflective of the guidance also provided in Lansa & Clovelly (supra). However, his Honour then sought to provide further guidance in relation to the approach to parenting cases which involved a proposed relocation of the children. At paragraphs 99 through 105, his Honour detailed matters of significance and in particular recognised that various factors, dependent upon the case, may be inter-related and assume particular prominence in any determination. His Honour said:
99.Reference to the “best interests” considerations in s 60CC of the Act makes it plain that in every parenting case it is necessary to consider the relevant factual history of the parties; the relevant factual history relating to the parenting of the child the subject of the proceedings; the current arrangements as well as the proposals of each party for future parenting arrangements, amongst many other considerations.
100.In other words, the process is not undertaken in the abstract or in a theoretical context, but must have regard to the particular child and the particular past history of that child and his or her parents with future parenting proposals considered in the context of that background.
101.Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
102.By the same logic, the Court is not bound by the parties’ proposals in the sense that only one or other proposal can be reflected in parenting orders. The statutory imperatives demand that the Court must consider proposals which meet the “best interests” criteria independently of the proposals of the parties, although, of course, the parties’ own respective proposals must be carefully considered and taken into account and procedural fairness must be accorded to the parties in respect of alternate proposals the Court might consider (AMS v AIF (supra) and U v U (supra)). It is essentially by reference to the parties’ competing proposals from which the assessment of “best interests” considerations proceeds as well as any alternative proposals the Court might contemplate.
103.The process suggested above in paragraph 87 will identify the advantages and disadvantages, in terms of best interests, of each of parties’ respective competing proposals. Where disadvantages are identified in the process the Court may consider, subject to the need to accord procedural fairness to the parties, whether there are modifications that might be made to the parties’ proposals which eliminate or minimise such disadvantages.
104.It seems to me that in any parenting case, including one involving a proposed relocation, the approach outlined in paragraph 87 above will meet the statutory imperatives and it is the approach I propose to take in this case. That noted, my review of the authorities indicates that in parenting cases involving a proposed relocation one or more of the following inter-related factors (without being exhaustive) may assume particular prominence in the best interests determination.
(a)s 60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s 60B also contain various references to the involvement of both parents in the life of their child.
In Sigley v Evor (supra) the Full Court recently considered what is required by the term “meaningful relationship” in s 60CC(2)(a). The Full Court:
(i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright (2007) 37 Fam LR 518 per Brown J and McCall v Clark (2009) FLC 93-405 per the Full Court);
(ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in s 60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s 60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;
(iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson (2009) FLC 93-407 per the Full Court at [103]);
(iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s 60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
(b)The s 60CC(3)(b) consideration of the nature of the child’s relationships is not confined to child/parent relationships, and in circumstances where either or both parents have re-partnered and/or have other children and/or there are relatives of the child, the proposed relocation may need to be considered in light of a number of relationships between the child and other relatives, or indeed “other persons” (and it is to be noted that s 60C(3)(d) requires specific consideration to be given to the likely effect on the child of any separation from, inter alia, any other child or person with whom the child has been living).
(c)Each of the additional considerations expressed in s 60CC(3)(c), (f) and (i) focus upon parenting capacities in one form or another. Likewise s 60CC(4) focuses upon the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent, in particular in the period post-separation of the parties (s 60CC(4A)).
In Sigley v Evor (supra) the Full Court referred to the significance of the features that the father in that case, who was opposed to the proposed intra-state relocation of mother and child, had very little involvement in the care of the child and had spent very little time with the child, despite the efforts of the mother. Against that background, the Full Court highlighted that the trial Federal Magistrate had failed to properly consider s 60CC(4) and to consider whether the father would remain committed to an order for him to spend regular time with the child.
If the parent who proposes to relocate has a poor history of promoting the child’s relationship with the other parent that may, weighed in the balance with other factors, (including the “meaningful relationship” assessment referred to above) have determinative significance. Conversely, if the child has a meaningful relationship with the non-relocating parent despite the historical experience of little care by and time with that parent, Orders might readily be framed to promote the meaningful relationship even if relocation is permitted.
(d)The additional consideration expressed in s 60CC(3)(f), referring to the capacity of parents to provide for the needs of the child can assume prominence where a parent adduces evidence of potentially adverse affects upon that parent’s capacity to provide adequate parenting if the relocation is not permitted where that parent is to be the primary carer either because the parties propose that, or the preponderance of s 60CC considerations point that way. However, such evidence must be examined from the perspective of best interests of the child and whether the evidence is sufficient to support a finding of adverse affect upon parenting capacity, not simply a finding of “unhappiness” or “disappointment”. In Hepburn v Noble (2010) FLC 93-438 and Sigley v Evor (supra) differently constituted Full Courts of this Court have recently considered and provided guidance to trial judges as to the sufficiency of the evidence that will be required to support findings to the effect that the capacity of a primary carer to parent a child may be compromised if the wish of that parent to relocate is not granted.
Aside from that, MRR v GR (supra) is itself authority for the proposition that a practical analysis must be made and a comparison of the position of the proposed relocating parent if relocation is or is not permitted, having regard to the best interests of the child. Section 65DAA(5)(e) refers to “such other matters as the court considers relevant” and in MRR v GR the High Court referred to such factors as the availability of housing and employment to the mother if she remained in Mount Isa as well as the living conditions and facilities available to the subject child.
(e)The financial circumstances of the parties and their financial prospects are brought into focus by a number of s 60CC considerations in a parenting case involving a proposed relocation, particularly where the proposed relocation may put significant distance between parents and where the financial circumstances of the parents are constrained. The ability to secure a continuation of a meaningful relationship with both parents (s 60CC(2)(a)); the ability of each parent to facilitate a close and continuing relationship with the other parent (s 60CC(3)(c)); the practical difficulty and expense of time and communication (s 60CC(3)(e)); and the capacity of each parent to provide for the needs of the child (s 60CC(3)(f)); are amongst the statutory considerations in determining best interests where financial realities assume significance. Likewise, as the High Court emphasised in MRR v GR (supra), application of s 65DAA is concerned with practical realities, and in that case, the High Court referred to the availability to the mother of superior accommodation and employment opportunities available in Sydney compared with those in Mt Isa.
In Godfrey v Sanders (supra), Kay J (sitting as the Full Court) paid attention to proposals that might be put in place, given the parties’ financial circumstances, to achieve the objective of maintaining meaningful relationships consistent with allowing relocation where that appeared to be in the children’s best interests. Commencing at paragraph [35], Kay J said:
“The Federal Magistrate was in my view appropriately critical of the proposals that were being put by the mother to commit the modest capital which she and Mr Godfrey had entirely towards the provision of airfares for the children in the ensuing years when the money may have been better directed to providing for their welfare. There was however an alternative route that was clearly available, namely the provision of part of those monies as a pre-condition to the relocation being permitted to ensure that at least for the foreseeable future, say the next four or five years, adequate funds would be set aside to enable the children to visit their father on say four occasions each year and for the father to visit them on two occasions each year if he so desired. There was no evidence to suggest that a meaningful relationship could not be maintained between the children and their father in such circumstances. Of course, such visits could well be supplemented by telephone and internet communication.
…
Whilst the Federal Magistrate was correct in her conclusion that if the mother was unable to pay a substantial part of the travel costs, the result might be that the children would not spend sufficient time with their father to maintain a meaningful relationship with him, there were clearly ways and means by which provision of some of the funds as already discussed could have been secured to avoid that eventuality happening, at least in the foreseeable future.
The Federal Magistrate ought to have weighed very, very heavily into the equation the desire of the primary caregiver of these children (and indeed their siblings) to move on to a better life that she and Mr Godfrey and the children were presently enjoying. The Godfrey household could not look to either father of the children living in their household to provide any meaningful support for the children. Mr and Mrs Godfrey were each looking for better financial prospects than were available to them in the Latrobe Valley. Mrs Godfrey sought to move to a warmer climate. The Godfrey family sought the comfort of their church and it was common ground that such comfort was readily available in Brisbane. …”
(f)Moreover, economic advantage to the child in terms of “best interest” may need to be considered under, for example, s 60CC(3)(m) (any other fact or circumstance that the court thinks is relevant), where a parent is proposing to relocate to pursue a relationship or marriage likely to provide economic benefits to the child. To similar effect were the observations of the High Court in MRR v GR (supra), where the High Court had regard to the mother’s prospects of employment and the facilities that could be provided for the subject child if the mother were able to relocate from Mt Isa to Sydney.
105.Thus, whilst it is not the law that a relocating parent has any onus of establishing a bona fide reason for the proposed relocation, plainly the economic prospects of better employment opportunities; better housing or other facilities; enhanced economic circumstances by reason of a provident re-partnership or re-marriage are relevant matters and may, in a given case, assume decisive significance in the determination of best interests. Conversely, limited employment prospects or other financial circumstances of the parties in the place of origin may be relevant to the assessment of the prospect of the party opposing the relocation being able to move if the children move.

As identified by Kent J, there is a “logical and practical approach” to be taken by a court which meets the statutory imperatives in a parenting case, including cases generally identified as relocation cases. The first requirement is to identify the proposals of the parties and that has, of course, already been noted at the commencement of these reasons. Quite simply, the mother wishes to relocate with X to the (omitted)/Sydney area to hopefully resume and revive her relationship with her husband, and the father proposes that the child and the mother, if she so chooses, remain in (omitted) and that an equal time arrangement be facilitated. There is no other identifiable proposal of either the court or the parties.
The next step is to obviously consider the objects and principles expressed in section 60B(1) and (2) and to make findings about the “best interests” considerations set out in section 60CC, though being mindful of the respective proposals.
This child has and benefits from a meaningful relationship with both of his parents. That meaningful relationship has not just been established in the last two and a half years, but has developed over the entirety of this boy’s life. It was established before X moved with his mother to Sydney in March/April 2010 and continued, not only to remain but develop over the time that the child was in Sydney until the mother’s return to (omitted) in August/September 2012. This was because of the mother’s determination to ensure that that relationship between father and son developed and improved. It occurred, notwithstanding that the father, for no doubt legitimate reasons, did not take all opportunities to spend time with his son.
There is nothing in the evidence that has fallen in this matter, which would give rise to any suggestion that the mother would not continue to foster and develop that meaningful relationship, whether she were in (omitted) or given leave to return with the child to Sydney. A meaningful relationship with both parents will exist no matter what, but one must also consider the circumstances in which the child lives, and therefore how that residential arrangement might affect the quality of a meaningful relationship.
I make that comment being mindful of the provisions of 60CC(2)(b) and of the need to protect the child from physical or psychological harm. The mother, for two and a half years, has carried on her life in a state of continued flux. This has arisen as a result of the direct actions of the father, and the flow-on effects of those actions. The mother’s relationship with her husband has been seriously affected which has no doubt caused her considerable hurt, and as a result of that, lead to a diminution in the quality of her parenting. Quite simply, the mother is understandably unhappy in the situation that has been thrust upon her, and that unhappiness, though she would no doubt attempt to protect her children from it, would affect her capacity to parent. Consequently, there is the risk, albeit small, of psychological harm to X and his younger siblings, as a result of the mother’s circumstances. It is a factor of some consequence in relation to this matter.
I am mindful also of the additional considerations that must be considered in relation to determining what is in a child’s best interests. The views expressed by the child are clear in that he enjoys his time with his father, and does not wish to see that opportunity reduced. It is clear, however, that the weight to be given to any expressed views, must be considered in the light of the child’s maturity and level of understanding. This boy has, as is identified, a number of difficulties which no doubt exacerbate the challenges of parenting. At the present time, those challenges fall primarily upon the mother. As identified in the evidence, the father was more the “good time parent” whilst the mother dealt with the day-to-day requirements arising from education and medical circumstances. The child’s view of his father and of the wishes expressed regarding continued time and increased time are wishes that arise, I find, from an immature appreciation of all that relates to the child’s relationships. Whilst the child’s views and wishes are factors to be considered, they are not, in my assessment, of such great significance in the ultimate determination of this matter.
This child has a positive relationship with his parents, and with others significant in his life. It is difficult, however, to fully assess the nature of the relationship with members of the father’s family because no evidence was available from the paternal grandparents or the father’s partner in respect of their relationship with the child. No doubt, there is a positive relationship with all those significant in the life of this child, but they include also the child’s siblings and step-father, and there is clear evidence of the quality of those relationships. I am satisfied that those relationships are ones that have been fostered primarily by the mother, she having had the primary responsibility at all times for the care and supervision of the child.
Significant in this assessment are the provisions of section 60CC(3)(c). The father has not taken all opportunities to be involved in all aspects of this child’s life. Whilst I acknowledged earlier that there were no doubt financial and other considerations that arose so as to limit the opportunities to spend time with X whilst he was living in Sydney, the father has repeatedly shown a reluctance or even refusal to participate in the decision-making process required with regard to this boy and his needs. That is significant in the determination of this matter, particularly in light of the father’s own comments to the effect that he was “still learning about parenting” and, more particularly, where I have found that the father’s own approach to matters as significant as the child’s health, was to be uncooperative and dismissive of the mother’s concerns.
Also significant are issues with regard to the effect of any changes in the child’s circumstances including if the mother’s application were to be successful, a significant reduction in the time to be spent with the father. Such a consideration is obviously of concern, but as identified previously, the child was separate from his father from early 2010 to August/September 2012 and the relationship was not diminished, but if anything, further developed, specifically as a result of the input and determination of the mother. There would not be any doubt that this boy would be saddened if his opportunities for time with his father were reduced, but as already noted, the mother has previously been able to deal with such issues appropriately, and there is no evidence which would suggest this would not be the case in the future.
It is of course also relevant that whilst there would be, if the move were to occur, a reduction in the time to be spent with the father, there would be greater opportunities for time to be spent with X’s siblings and step-father. I do not suggest that that would entirely balance any distress that the child might initially feel, but it is a consideration when one is required to balance the pros and cons arising from each party’s proposal.
As previously identified, the tyranny of distance and the consequential costs that arise with travel, has had some effect upon the child’s opportunity to spend time with the father when X was last living in Sydney, and I would expect that there would still be difficulties of that nature. They are not however insurmountable, and can properly be dealt with in relation to the sharing of expenses, as well as appropriate adjustments that can be made in relation to child support. It is also obvious that the mother’s financial circumstances would be altered and one would expect improved, if she were to resume residence with her husband and was therefore able to take steps to return to work in some capacity as well as to rent the property currently owned in (omitted).
The capacity of the parents to provide for the needs of the child, including the child’s intellectual and emotional needs, as well as a consideration of each parent’s attitude to the child and to the responsibilities of parenthood, is an important consideration. Both parents can meet the intellectual needs of this boy. Both can ensure that there is a roof over his head, food on the table, clothes on his back, and appropriate educational arrangements made. But the emotional needs of the child and consideration of his specific health needs are far better dealt with by the mother.
All evidence as to the father’s “laid-back approach” has shown that there has been a less than complete appreciation by the father of the need to sometimes be a parent, rather than a friend. The mother has made the hard decisions including identifying the child’s difficulties and addressing them. The father has refused to acknowledge them until the eleventh hour and, if anything, has sought to undermine the mother, even in circumstances where the medical evidence identified real concerns with regard to this little boy. In such a situation, the mother’s approach to the responsibilities of parenting and her capacity to provide for the emotional and health needs of the child far outweigh any such capacity on the part of the father.
Issues with regard to maturity, sex, lifestyle and background, aboriginality or family violence do not loom large in relation to this matter. What is of some significance however is a consideration of orders which are least likely to give rise to further litigation. The mother’s proposal, if successful, would result in a return to what was previously consented to by the father and was not the subject of further litigation until the mother’s return to (omitted). In the circumstances, it is fair to surmise that a return to what previously existed would not be likely to lead to the institution of further proceedings.
The alternative suggested by the father, however, is fraught with future possibilities for litigation. The father, in his own proposals, suggests the review of orders in the event that either party intended relocating out of Queensland. A move by either parent would lead to further litigation. Additionally, there is the very real prospect if the mother were to remain in (omitted), of there being further deterioration in her relationship with her husband and consequently effects upon her capacity to provide for and to meet the needs of X and of his younger siblings. The likelihood of further litigation arising from changes of that nature is high, and is a factor obviously required to be considered.
Whilst not often the case, there is also the need here to address not only the relationship between X and his siblings, but the consequences for the two younger children if the mother’s proposed orders were not made. Their relationship with their brother is significant and in the very long term will hopefully continue well beyond the time of the relationship between X and his parents. Their own opportunity to develop and to grow, however, is directly affected by this litigation and the orders that might be made because at the present time, their relationship with their father, through no fault of their own, is severely hindered. That not only affects those children, but also has a direct affect upon the mother.
Her capacity to parent X and his younger siblings is impinged upon by the separation from her husband, and that separation has come about in no small part as a result of the actions of the father. It accordingly is a factor which must and will continue to play upon the mother’s mind, and will affect her capacity to cooperate with and communicate with the father now and into the future. Unless that particular aspect of the matter is addressed in orders of the court, the mother’s overall capacity to parent will no doubt be reduced.
Obviously, I have addressed a great number of considerations that must be looked at in determining the best interests of this boy. Whilst all are significant to different degrees, it is clear that of particular relevance is the effects upon the mother’s capacity to parent, dependent upon what orders might be made, as well as the very different abilities identified in respect of each parent’s capacity to provide for the emotional needs of X, and to address the responsibilities and obligations of parenting. All of those matters weigh heavily in favour of the orders sought by the mother.
It is necessary in light of the various findings made to consider the issues of parental responsibility and dependent upon such a determination, consider whether the provisions of section 65DAA are triggered. As I noted earlier, the parties both propose that there should be equal shared parental responsibility. They have previously agreed to such an order, and generally it worked, notwithstanding the more recent behaviours of the father, including a failure to properly engage in the decision-making process. I have some concerns in relation to the presumption and whether it would be rebutted because of the difficulties in communication between the parties.
In the end, I am of the view that this child deserves the involvement of both parents in the decision-making process, and whilst there are, as is almost invariably the case, difficulties between the parents, they can overcome them and communicate in a proper manner so as to make the necessary decisions required in relation to the life of the child. Equal shared parental responsibility can be rebutted if the court is satisfied that the presumption would not be in the child’s best interests. It is clear, from what I have already said, that X deserves the involvement of both parents in the decision-making process but, more importantly, it would be in the best interests of the child for his parents to work together for his betterment. I intend therefore to order equal shared parental responsibility.
In light of that determination, the provisions of section 65DAA are as described by Kent J, “triggered”. The court must therefore consider whether equal time would be in the best interests of the child and whether it is reasonably practicable, and if not so ordered, then consideration must be given to whether the child can spend substantial and significant time with each parent. The obvious difficulty that arises here is the one that stems from the mother’s proposed order enabling her to live in the (omitted)/Sydney area and thus to resume her relationship with her husband.
Such a difficulty does not arise if the father’s proposals were acceded to, but that does not of course take into consideration the many other issues to which I have already made reference. In this matter, as is hopefully obvious from the reasons I have given, I am far more inclined to the view that the mother’s proposals are more attuned to addressing in a holistic manner the best interests of this child. Such an order as proposed by the mother, however, obviously has a considerable effect upon the types of orders that can properly be made.
Section 65DAA(5) specifically notes various factors that the court “must have regard to” in relation to determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents. Understandably, the first factor to consider is how far apart the parents live from each other, and the orders proposed by the mother and which it should not be forgotten were agreed to initially by the father, would place some thousands of kilometres between each of the parent’s homes. That factor, if nothing else, would render equal time or substantial and significant time impracticable in the extreme. It is in my assessment unnecessary to consider those other matters detailed in section 65DAA(5) because in my finding, the mother’s proposals are in the best interests of the child, and they obviously preclude orders for equal time or substantial and significant time.
Accordingly, consideration must then return to those matters that have already been discussed, arising from the various factors identified as determining what is in a child’s best interests as set out in section 60CC. This child must have a relationship with all those significant in his life. The mother’s proposals, most appropriately, deal with that consideration, being mindful of the order sought with regard to the mother and the child relocating to the (omitted)/Sydney area. I am satisfied that the orders generally proposed by the mother reflect the best interests of the child and accordingly make orders in terms of those as detailed at the commencement of these reasons.

I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Coker

Associate:

Date: 8 May 2015

[2015] FCCA 1169

8 May 2015

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