Hahn and Trillin

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAHN & TRILLIN

[2014] FCCA 2426

Catchwords:
FAMILY LAW – Parenting – application for final parenting orders – mother seeks to relocate interstate – father opposes the mother’s relocation.

Legislation:

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

Taylor v Barker (2007) 37 Fam FLR 461
Cowley & Mendoza [2010] FamCA 597
MRR v GR [2010] HCA 4
Heath v Hemming (No.2) [2011] FamCA 749
Sigley & Evor (2011) 44 Fam LR 439

Applicant:

MS HAHN

Respondent:

MR TRILLIN

File Number:

MLC 6863 of 2012

Judgment of:

Judge Bender

Hearing date:

10 October 2014

Date of Last Submission:

13 October 2014

Delivered at:

Melbourne

Delivered on:

24 October 2014

REPRESENTATION

Counsel for the Applicant:

Ms Carter

Solicitors for the Applicant:

HQ Law

Counsel for the Respondent:

Ms Stoikovska

Solicitors for the Respondent:

Lander & Rogers

ORDERS

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child [X] born [omitted] 2008 (“[X]”).
[X] live with the mother.
Upon the mother’s partner Mr W receiving and accepting a written offer of employment as [omitted] with his employer [M] Pty Ltd (“the offer”) and on the condition that the offer is made and accepted on or before 30 June 2015, the mother be permitted to relocate to Hobart with [X].
In the event the mother’s partner is not offered the position of [omitted] with his employer [M] Pty Ltd by 30 June 2015, the mother is not permitted to relocate to Hobart with [X].
Upon [X] relocating to Hobart he spend time and communicate with the father as follows:
(a)subject to order 7 herein, in Victoria for the fourth and eighth weekend in each of the Tasmanian school terms, from 7.00pm Friday to 4.00pm Sunday or the closest time that a flight arrives from or to Hobart.
(b)in Hobart for the second and sixth weekend in each Tasmanian school term from 7.00pm Friday to 7.00pm Sunday or the closest time a flight arrives to or from Hobart;
(c)in Victoria for the first and third term holidays from 7.00pm Friday at the conclusion of the Tasmanian school term until 5.00pm of the last Wednesday of the school holidays or as is otherwise required so that the time includes the period during which the Victorian and Tasmanian school term holidays coincide;

(d)in Victoria for the June/July school term holidays for one week by agreement and failing agreement:
(i)in odd years in the week that [X]’s birthday falls from 5.00pm Friday to 5.00pm the following Saturday or the closest time a flight arrives from or to Hobart.
(ii)in even numbered years in the week [X]’s birthday does not fall, from 5.00pm Friday to 5.00pm the following Saturday or the closest time a flight arrives from or to Hobart.

(e)in Victoria for half of the long summer vacation as agreed and failing agreement;
(i)in even numbered years from 5.00pm 23 December to 5.00pm 12 January;
(ii)in odd numbered years from 5.00pm 2 January to 5.00pm
22 January.

(f)upon the father providing the mother with seven days’ notice and the wife not unreasonably refusing same, any further weekend in Hobart from 5.00pm Friday to 5.00pm Sunday that the father travels to Hobart.
(g)by telephone, Skype or other viable telecommunication medium upon the father’s or [X]’s reasonable election at any reasonable time but no less than three times each week for up to 30 minutes duration.
(h)such further or other times as agreed between the parties.

The weekends [X] spends with the father pursuant to order 6(a) herein shall be adjusted to ensure [X] spends time with the father in Victoria on any long weekend common to both Victoria and Tasmania and on the Father’s Day weekend and to ensure [X] is in Hobart on the Mother’s Day weekend.

When [X] is travelling to Victoria to spend time with the father pursuant to these orders, the mother shall pay the cost of [X]’s flights between Hobart and Melbourne and will purchase the tickets and provide copies of them to the father at least six weeks prior to the flight. The father or his agent shall collect [X] from and return [X] to Melbourne airport.
When [X] is spending time with the father in Hobart pursuant to these orders, the father shall be responsible for the costs of his and [X]’s travel and accommodation.
Each party keep the other informed at all times of their current residential address, contact telephone number and email address.
The father be permitted to attend all school events relating to [X] normally attended by parents and receive at his expense all school reports, school photograph order forms and newsletters.
Each party shall advise the other of any serious illness or injury suffered by [X] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

AND THE COURT NOTES THAT:

A.The mother has agreed that in the event she and [X] relocate to Hobart the mother shall not require the father to pay child support for [X] to enable the father to utilise those monies to offset the costs of the father spending time with [X] in Hobart.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6863 of 2012

MS HAHN

Applicant

And

MR TRILLIN

Respondent

REASONS FOR JUDGMENT

Introduction

This is the mother’s application to relocate from [B], Victoria to Hobart with the parties’ 6 year old son [X] born [omitted] 2008 (“[X]”).
The father opposes [X]’s relocation and seeks that he remain living in [B] in the shared care arrangement the parties have had in place for many years.

Background

The mother was born on [omitted] 1979 and is aged 35 years. The mother is currently completing her [omitted] qualifications and is otherwise engaged in home duties. The mother has repartnered with

Mr W and she and Mr W have a 10 month old son, [Y] born [omitted] 2013 (“[Y]”).
The father was born on [omitted] 1979 and is aged 35 years. The father is a [occupation omitted] in [B]. The father has recently commenced a relationship with Ms B who has two sons from a previous relationship. Ms B and the father do not live together but consider themselves to be in a committed relationship.
The parties commenced cohabitation in Melbourne in 2003 and married on [omitted] 2005.
In 2007 the parties made a lifestyle decision to live in [B]. Both parties were attracted to a country lifestyle. The husband completed his university qualifications in [B] and [B] was well positioned as it is half way between the parties’ extended families, the maternal grandmother living in [omitted] and the father’s family in [omitted].
The parties separated amicably in June 2010.
After separation, the parties worked together co-operatively to put in place flexible arrangements which enabled [X] to spend regular time with the father.
On 12 January 2011 the parties entered into consent orders which provided for the parties to have equal shared parental responsibility for [X], for [X] to live with the mother and spend time with the father each alternate weekend from Friday to Monday, each Wednesday from 4.00pm to 8.00pm Thursday, for half of school holidays and on special occasions.
This arrangement was subsequently altered by agreement between the parties so that [X] spent every Tuesday night rather than Wednesday night with the father as well as an additional Friday night resulting in [X] spending 6 nights each fortnight with the father.
In October 2011 the mother commenced a relationship with Mr W. The mother and Mr W commenced living together in September 2012 and, as noted, their son [Y] was born on [omitted] 2013.
Mr W has been employed in the [omitted] industry for over 20 years. When he commenced his relationship with the mother he was employed as the [omitted] at [P] in [B] (“[P]”).
It is Mr W’s evidence that he has held a long standing ambition to become a [occupation omitted]. This position involves the [omitted] and can, in some circumstances, offer an opportunity to acquire equity in the business. It is Mr W’s further evidence that such positions very rarely become available and when they do are very difficult to obtain.
In April 2014 Mr W became aware there was an opportunity to become a [omitted] with a [omitted] in Hobart. The new position required the successful applicant to initially work as the [occupation omitted] to learn the business of the company with the expectation the successful applicant would be offered the [omitted] role within 12 months.
The mother and Mr W discussed the opportunity offered by this position and decided Mr W should apply.
On 2 May 2014 the mother asked the father to attend changeover earlier on the 5 May 2014 as she had something to discuss with him. On 5 May 2014 the mother told the father of the opening available to

Mr W in Hobart and that she wished to relocate with [X] to Hobart.
At the meeting on 5 May 2014 and in subsequent emails sent to the mother by the father, the father made it very clear that he did not agree with [X] relocating to Hobart.
The parties attended mediation to discuss the mother’s proposal to relocate to Hobart and were unable to reach agreement. The mother then commenced these proceedings.
Mr W was successful in his application for the position in Hobart and accepted an offer of Employment on 10 May 2014 from [M] Pty Ltd to commence on 1 July 2014.
On 27 June 2014 Mr W signed a lease for a three bedroom residence at [address omitted] in Hobart. Upon signing the lease for the Hobart property, Mr W and the mother ended the lease on their rental property in [B]. After ending the [B] lease the mother and Mr W moved their furniture to Hobart and the mother, [X] and [Y] have been staying with Mr W’s sister in her 3 bedroom home in [B].
On 12 September 2014 the parties agreed on an interim basis and pending the determination of this matter that [X] would live week about with each of the parties. It is my understanding that when [X] is with the father, the mother and [Y] fly to Hobart to be with Mr W.
If the mother is not permitted to relocate to Hobart, she and Mr W will return to Victoria. Both parties agree that if the mother lives within close proximity to [B], the living arrangements for [X] that were in place before the relocation issue arose will resume.

The Evidence

The Mother

In support of her application, the mother relies on her trial affidavit sworn 7 October 2014 and her financial statement sworn

19 August 2014. She also relies on the affidavit of Mr W affirmed 18 September 2014. The mother and Mr W both gave viva voce evidence at the final hearing.
The mother is seeking to relocate with [X] to Hobart, Tasmania to live with her partner Mr W and [Y].
If permitted to relocate to Hobart, the mother proposes that the father spend time with [X] as follows;
(a)each fourth weekend in Victoria, commencing on the fourth weekend of each school term, from 7.00pm Friday to 4.00pm Sunday or the closest time that a flight arrives from or to Hobart;
(b)in the event the husband is able to travel to Hobart at his own expense, the second weekend of each school term and each fourth weekend thereafter in Hobart from 6.00pm on Friday to 7.00pm on Sunday;
(c)for the first and third term holidays from 7.00pm on Friday at the conclusion of the school term until 5.00pm of the last Wednesday of the school holidays or as otherwise required so that the time includes the period during which the Victorian and Tasmanian school term holidays coincide;
(d)for the June/July school term holidays for one week by agreement, and failing agreement;
(i)in odd years in the week that [X]'s birthday falls, from 5.00pm Friday until 5.00pm the following Saturday;
(ii)in even years in the week that [X]'s birthday does not fall, from 5.00pm Friday to 5.00pm on the following Saturday;
(e)the half of the Christmas school holidays by agreement, and failing agreements;
(i) In each even year from 5.00pm Christmas Eve to 5.00pm 12th January;
(ii) in each odd year from 2 January to 22 January;
(f)on the husband providing the wife with seven days’ notice, and the wife not unreasonably refusing same, any weekend from 5.00pm Friday to 5.00pm Sunday that the husband travels to Hobart;
(g)by telephone and Skype at any reasonable time;
(h)by agreement.
It is the mother's proposal that when [X] is travelling to Victoria, she will pay the costs of [X]'s flights between Hobart and Melbourne and that she will purchase the tickets and provide copies of them to the father at least six weeks in advance. The mother also proposes that the husband or his agent collect and return [X] to Melbourne airport.
It is the mother’s proposal that when [X] is spending time with the father in Hobart, the father be responsible for his and [X]'s travel and accommodation costs.
The mother is also amenable to ensuring that the weekends that [X] spends with his father in [B] coincide with all long weekends common to Victoria and Hobart to maximise the time that [X] can spend with the father.
The mother acknowledges that [X] and the father have a close and loving relationship and that the father is a committed, caring and loving father to [X].
The mother also acknowledges that in the event she is permitted to relocate to Hobart with [X], such move will impact on [X]'s relationship with his father as the long standing arrangements which enable [X] to spend time with both his parents on multiple occasions in each fortnight will, because of the distance, be unable to continue.
It is the mother's evidence however that she believes that her proposal, which in effect would provide for [X] to spend alternate weekends with the father as well as a considerable amount of the school holidays will ensure that [X] is able to maintain a loving and meaningful relationship with the father. This is particularly so as the father will spend regular time with [X] in Hobart which will enable him to be involved in [X]'s extracurricular activities and to meet [X]'s friends and their families.

It is mother's evidence that since Mr W relocated to Hobart, [X] has been speaking to Mr W regularly by way of Skype and that [X] enjoys communicating via this medium, albeit he is not that fond of speaking on the telephone. It is the mother's evidence that she believes that [X] will be able to happily communicate with the father by way of Skype during the times that he is not spending face to face time with the father.
It is the mother's evidence that if permitted to relocate to Hobart with [X], she will not pursue her career in [omitted] for a period of at least 12 months so that she can continue her role as [Y]'s parent and also to assist [X] in his transition to his new life in Hobart. It is also Mr W’s evidence that he and the mother are contemplating adding to their family.
It is apparent from the mother's evidence that she is fully supportive of Mr W pursuing his career within the [omitted] industry and accepts that in order to do so her family will be required to move away from the [B] region. To this end it is the mother's evidence that when she sold the property owned by her after the commencement of her relationship with Mr W, rather than buying a property in [B] the proceeds of sale were invested whilst opportunities for Mr W’s career progression were explored.
In the event [X] is not permitted to relocate to Hobart, it is the mother's evidence that Mr W would terminate his employment in Hobart and that they would remain living in Victoria. It is the mother's evidence however that Mr W is not guaranteed employment back in [B] and they would need to live wherever Mr W is able to obtain appropriate employment.
It is the mother's further evidence that if [X] is not permitted to relocate to Hobart and Mr W is able to obtain employment in [B], the living arrangements for [X] would return to those that were in place prior to the question of relocation becoming an issue between the parties.

Mr W

Mr W is the mother's partner. Mr W affirmed an affidavit in these proceedings on 18 September 2014 and gave viva voce evidence at the final hearing of this matter.
Mr W supports the mother's application to be able to relocate to Hobart with [X] and [Y] to live with him whilst he pursues the opportunity to advance his career by obtaining the position of [omitted] with his current employer.
It is Mr W's evidence that he has long held the ambition to become a [omitted] as this position involves the [omitted].
It is Mr W’s evidence that it is very difficult to obtain a position as [omitted] and the opportunities to make application for such positions are few and far between.
It is Mr W’s evidence that in his previous position in [B] he earned between $120,000.00 to $145,000.00 per annum. The position in Hobart currently held by him means he has taken a drop in salary of between $20,000.00 and $30,000 but that if he is successful in obtaining the position of [omitted], he will earn between $170,000.00 and $200,000.00 per annum and also have the possibility of acquiring equity in the [business].
When questioned as to why he applied for the position in Hobart knowing that the father did not agree to [X] relocating to Hobart, it is Mr W’s evidence that he did so because of the rarity of such positions becoming available and because there was a very short time frame in which an application could be made.
Mr W was questioned as to why it would not be possible for the mother, [X] and [Y] to remain in [B], for him to base himself in Hobart and for him to fly back to [B] to see his family each week rather than [X] having to bear the burden of being separated from his father and having to undertake frequent and quite onerous travel in order to maintain his relationship with his father.
It is Mr W’s evidence that it would not be financially possible to maintain two households and fund weekly travel between Tasmania and Victoria. It is his further evidence that he, the mother, [X] and [Y] are a complete family and need to be together in order to consolidate their family unit. Further, as [Y] is only 10 months of age it would not be possible for Mr W to develop a relationship with his son if he was living in Hobart and only seeing [Y] once a week. It is Mr W’s evidence that his position requires him to work Monday to Saturday so that his capacity to spend any time with his family if he had commute between Hobart and [B] would be extremely limited.
Mr W was questioned as to whether he believed there would be any downside for [X] in the event that the Court permitted relocation to Hobart. It is Mr W’s evidence that whilst a relocation would mean that [X] would not be able to see his father as often as he currently does, he does not believe there was any downside for [X] relocating to Hobart because [X] likes Tasmania, enjoys travelling in planes and he loves being part of “our family unit”.
Mr W confirmed that if [X] was unable to relocate to Tasmania he would terminate his employment in Hobart, terminate the lease on the rental property in Hobart and return to Victoria.
It is Mr W’s evidence that he is not aware of any positions available to him in [B] and that he believes that he would only be able to obtain a position in Melbourne or in some other regional centre.
Mr W was provided with a very recent advertisement from [P], seeking a [occupation omitted]. Mr W was unaware that this position had been advertised.
In relation to the likelihood of him obtaining the [omitted] position with his current employer in Hobart, it is Mr W’s evidence that he has been assured that he will be offered this position. Whilst Mr W conceded that there is someone currently in the role of [omitted] it is his understanding that the current [omitted]’s contract expires in February 2015 at which time Mr W expects to be offered the position. Mr W offered no independent evidence from his current employer confirming his expectations.

The Father

The father relies on his affidavits sworn 23 September 2014 and

7 October 2014. The father also gave viva voce evidence at the final hearing.
It is the father's evidence that he and [X] have a very close and loving relationship and that he has been an involved, hands-on father since [X]'s birth.
It is the father's evidence that when the parties separated they were able to work amicably and cooperatively with each other to put in place flexible arrangements that ensured that he and the mother shared in [X]'s care and were both able to be actively involved in all aspects of [X]’s life.
The father does not believe that the proposed relocation is in [X]'s best interests. It is the father’s evidence that if [X] were to relocate to Tasmania it would have a negative impact on the quality and depth of his relationship with [X] as a result of the reduction in the time [X] would be able to spend with him and in his ability to be actively involved in [X]'s day to day activities including his school, friends, extracurricular activities and the myriad of small but important things he is currently able to experience with [X] on an almost daily basis.
It is the father's evidence that he does not believe that the relationship that he has with [X] can be maintained through alternate weekend and holiday time and electronic communication.
It is the father's evidence that he is currently employed in a full-time position as a [omitted] in [B]. It is the father’s further evidence that he is an active participant in his local church community and has important connections and relationships with the [co-workers] and the [omitted] who attend the [workplace omitted], most of whom are also involved in his local church community group.
It is the father's evidence that he is now in a relationship with his current partner Ms B. Whilst that relationship is in its formative stages, it is the father's evidence that he and Ms B believe that theirs will be a long-term relationship.
Because of the father’s job, friendships, his relationship with Ms B and his connection with the local community, the father is committed to living in [B] and would not move to Hobart in the event that [X] was permitted by this Court to relocate.
In the event the [X] is not permitted to relocate to Hobart, the father was in agreement with the mother that if [X] were to remain living in the [B] region, the arrangements the parties had in place for [X]’s living arrangements prior to the relocation issue becoming live would be resumed as they are clearly working very well for [X], the father and the mother.
In the event [X] is not permitted to relocate to Hobart, but the mother and her new family have to live outside of [B], it is the father’s evidence that he believes it would be in [X]'s best interests to continue to live in the primary care of the mother and was open to contemplating alternate arrangements for [X] to spend time with him other than those that were in place prior to the relocation issue becoming live.
It is his father's evidence that unless Mr W, the mother and their new family unit were to be located in a regional centre in reasonable close proximity to [B] or the northern suburbs of Melbourne such that [X] could continue to spend significant time with him, then [X]’s living arrangements may need to be determined by this Court if the parties could not agree.
The father proposed that in the event [X] was not permitted to relocate to Hobart, but the mother still chose to move to Hobart, [X] live with him. As the mother was quite clear in her evidence that if [X] was unable to relocate she would remain living in Victoria, this proposal was not further explored.

In the event that [X] is permitted to relocate to Hobart to live with the mother, it is the father's proposal that [X] spend time with him as follows:
(a)During the school term at [X]’s school from time to time:
(i)   in Hobart on the first weekend of each month from 6.00pm on Friday until 7.00pm on the following Sunday; and
(ii)    in [B] on the third weekend of each month from 6.00pm on Friday until 4.00pm on the following Sunday.
(b)During the first, second and third school term holidays:
(i)   by agreement, and failing agreement, for all such nights that the school term holidays at the school where [X] attends coincide with the school term holidays at the school where the father is employed, with [X] to travel to [B] on the first day of such period, and return to Hobart on the last day of such period.
(c)On special occasions as follows:
(i)   notwithstanding any other provision in these orders in 2014 and each alternate year thereafter, from 5.00pm on Christmas Eve until 3.00pm on Christmas Day;
(ii)    notwithstanding any other provision in these orders in 2015 and each alternate year thereafter, from 3.00pm on Christmas Day until 5.00pm on Boxing Day;
(iii) on the weekend of Father’s Day, from 6.00pm on the Friday until 6.00pm on the following Sunday;
(iv) Providing that [X] also spends time with the mother as follows:
(A)In 2014 and each alternate year thereafter, from 3.00pm on Christmas Day until, 5.00pm on Boxing Day;
(B)In 2015 and each alternate year thereafter, from 5.00pm on Christmas Eve until 3.00pm on Christmas Day
(d)Long summer holidays
(i)   For one half of the long summer holidays by agreement, and failing agreement for the first half in even numbered years and the second half in odd numbered years.
(e)Telephone contact
(i)   By Skype, phone or other viable telecommunication medium at the father’s reasonable election, on each Monday, Wednesday and Friday during both term time and during holidays for up to 30 minutes each time, between 5.00pm and 8.00pm.
(f)Other contact
(i)   such further or other times as agreed between the parties.
(g)Travel costs
(i)   That the mother pay the cost of all [X]’s flights between Hobart and Melbourne with the mother to purchase such aeroplane tickets and provide a copy to the father not less than 6 weeks in advance.
(ii)    That the mother pay the cost of all the father’s flights between Melbourne and Hobart made pursuant to paragraph 6.a with the mother to purchase such aeroplane tickets and provide them to the father not less than 6 weeks in advance with such flights to:
(A)Depart Melbourne Tullamarine Airport between the hours of 5.30pm and 7.30pm, or the closest available flight travelling to Hobart Airport on the first day of the father’s time with [X]; and
(B)Depart Hobart Airport between the hours of 5.30pm to 7.30pm or the closest available flight travelling to Tullamarine Airport on the last day of the father’s time with [X].
(iii) That the father shall pay all other costs of transport for [X] between [B] and Melbourne.
(iv) That the father shall pay the costs of his accommodation in Hobart.
The father expressed understandable resentment and frustration that the mother and Mr W proceeded to act on their plan to relocate to Hobart in circumstances where they were fully aware of his opposition to [X] relocating to Hobart. The father posited that they had done this in an attempt to “blackmail” the Court into having to agree to [X] relocating to Hobart.

Mr H

Mr H is a family consultant who prepared a family report in this matter dated 29 September 2014. Mr H also gave viva voce evidence at the final hearing of this matter.
In his family report of 29 September 2014, Mr H acknowledged that the father's belief that his relationship with [X] would be diminished by relocation is somewhat borne out in the literature. It is Mr H’s evidence that whilst the literature is somewhat limited, it clearly indicates that children who relocate tend to suffer a greater range of negative psychological, emotional, health and social outcomes into adulthood than those children whose parents stay closely located after separation.
In his viva voce evidence, Mr H was cross-examined in relation to this aspect of his report. It is Mr H's evidence that the possible negative impacts on these children into adult hood can be a high degree of anxiety disorders, a high degree of depression, a high degree of failed relationships as adults, poorer health outcomes and less financial support from the non-resident parent.
Mr H conceded that not every child of parents who relocate suffer from some or any of these long-term consequences and that the study on which the literature was based involved a very broad sample with significant variables which meant the studies cannot be used as an indicator of the outcome for any particular child.
In paragraph 35 of his family report, Mr H noted the warm and reciprocated relationship between [X] and his father. He stated that the father's reduced ability to participate in [X]'s life if [X] were to relocate to Hobart would likely result in a significant diminution in the quality and intimacy of the relationship between the father and [X].
In paragraph 36 of his family report Mr H states as follows:
36. In this scenario, Mr Trillin will no longer share the mutual connections and intimacy of [X]’s social, school, and recreational life, and the interpersonal intimacy derived from shared routines and daily living will be largely absent from their lived experience together. This distancing is likely to make [X]’s life with Mr Trillin somewhat peripheral over time as he settles and becomes embedded in his new location.
During cross-examination, Mr H was asked to expand on what he meant in his family report when in paragraph 36 he said [X] moving to Hobart would result in the father becoming “somewhat peripheral over time” as [X] becomes settled and embedded in his new location. Mr H explained that this related to the father not being able to have contact with [X]'s friends, not being able to form relationships with [X]’s teachers and not knowing much about [X]'s day to day life. Mr H further explained that the father would be likely to become more peripheral as [X] increasingly came to identify his mother's home and his life with Mr W and [Y] as the central base from which his life emanates. Mr H described [B] as becoming a place he goes to because of his very important relationship with his father but not the place from which his life operates.
In paragraphs 37 and 38 of his family report, Mr H discussed the factors that to some degree ameliorate the impact of relocation on the relationship between the child and the non-relocating parents as follows:
37. Resilience factors to the diminution of the relationship with the non-moving parent are identified as; the child’s developmental stage at the time of relocation, the level of attachment formation to the non-moving parent, commitment of the moving parent to maintaining the relationship with the other parent, and the frequency and duration of the time spent with the non-moving parent after relocation.
38. These psycho social factors are identified as building resilience into the relationship and have the capacity to ameliorate the negative outcomes described above. In this case the attachment formation with Mr Trillin is strong and secure; the commitment of Ms Hahn to maintaining the father/son relationship is historically well established and not questioned by the writer, and [X] is at an age and stage that allow him to hold an internal construct of his relationship with his father over space and time. This is evidenced by his clear and unambiguous identification of Mr W as his “step father” and Mr Trillin as his biological father. The Court will need to weight these supporting factors against the impact of the identified diminution in the relationship inherent in the various proposals.
In cross-examination, Mr H confirmed the observations in his report that [X] is now at a stage where he has the cognitive capacity to deal with relocation and that he has the internal construct of what his relationship with his father means so that he would be able to maintain a relationship with his father if he were to relocate.
Mr H further confirmed that given the predictor of future behaviour is past behaviour, there could be no issue about the mother's commitment to [X] maintaining a relationship with his father in the event of relocation.
It is Mr H's evidence that the whilst mother's proposal that in the event of relocation [X] spend alternate weekends and considerable holiday time with his father will enable [X] to maintain a meaningful relationship with his father, there would still be a significant diminution in the quality and intimacy of that relationship.
It is Mr H's evidence that there is no doubt that if he were to relocate [X] would miss his father, that initially he may fret and that he would be sad. It is Mr H's evidence however that psychologically healthy children such as [X] are highly adaptive and that [X] would adapt to his new living circumstances.
It is Mr H's evidence that the optimum outcome for [X] would be for there to be no change to his existing living arrangements in that where children are lucky enough to have two very good parents with whom the child has a positive relationship and parents who have always been actively involved in their lives, relocation is not the best outcome for them. Mr H agreed that when faced with such a scenario, it could be argued from a social science perspective that no parent or child should ever relocate.

The Legal Approach

Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear however that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is by following the legislative framework prescribed under the Act to determine what order is in a child’s best interests.
In Taylor v Barker (2007) 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:
When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74;
(2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.

In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:
A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
A relocation case falls to be determined like any other parenting case.[1]
[1] At paragraph 31.

The Best Interests of the Child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Presumption of Equal Shared Responsibility

In this matter both parties propose that they have equal shared parental responsibility for [X].
Section 61DA of the Act provides that the Court must apply a presumption that it in the best interests of the child for the child’s parents to have equal shared responsibility for the child.

This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.
In those matters where there is an issue as to whether an order should be made for equal shared responsibility, it is often the approach of the Court to fully consider all aspects of the best interests of the child before making a determination on the question of parental responsibility.
In this matter however, there can be no question that an order should be made for the parties to have equal shared parental responsibility for [X]. Since separation the parties have ensured that they have cooperatively co-parented [X] in a flexible and age appropriate manner and have been able to put in place living arrangements for his care that have ensured he has developed into a delightful, well loved, secure and happy little boy.
Accordingly, an order will be made that the parties have equal shared parental responsibility for [X].

Consideration of equal time or substantial and significant time

Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
Section 65DAA(1) provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65DAA(2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)         the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

Section 65DAA(5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between section 60CA, section 61DA(1) and section 65DAA of the Act.
In MRR v GR (supra), the High Court held at paragraph 9:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", [i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.
The High Court then held at paragraph 13:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court further held at paragraph 15:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.
The presumption in s61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”
Thus, the Court must consider whether it is in the child’s best interests and also whether it is reasonably practicable for the child to spend equal or significant and substantial time with their parents.
If the mother is not permitted to relocate to Hobart and continues to live in or around the [B] region, the parties are in agreement that [X] will continue to live in the shared care arrangement that has been in place for some time prior to the relocation issue arising.
In the event a decision is made that it is in [X]'s best interests to relocate to Hobart, then an order that makes provision for equal time is not practicable given the distance between [B] and Hobart.

Best Interests of the Child

When determining what is in the best interests of the child, the court must consider the matters set out in Section 60CC(2) and

Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties proposals (see AMS v AIF 99 199 CLR 160, U & U 202211 CLR 238), is in the children’s best interests.

Section 60CC(2)(a)

Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:

Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents

That [X] has a close, loving and meaningful relationship with both the mother and father is well acknowledged by both parties and the report writer Mr H.
Until the issue of relocation arose, the parties worked cooperatively and respectfully with each other to ensure [X] has been afforded the opportunity to love and be loved by two competent, caring and child focused parents.
In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph 104 reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104 of his judgment, His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:
(a)s60CC(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, s60CC(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 s60B also contain various references to the involvement of both parents in the life of their child.
In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(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] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (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
s60CC(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 s60CC(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 [2006] FamCA 1408; (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] FamCAFC 96; (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 (s60CC(3)(g)) may assume particular importance.
It is the evidence of Mr H that given [X]'s age and cognitive ability, the strength of his relationship with the father and the mother’s support of [X]’s relationship with the father, [X] will be able to maintain a meaningful relationship with the father, albeit not at an optimal level, in the event he were to relocate to Hobart. This is particularly so given that the parties’ mutual proposals in the event of relocation would ensure that [X] spends alternate weekends and the majority of the school holidays with the father.

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

This is not a factor relevant in this matter as [X] never has been at risk of physical or psychological harm in the care of either of his parents.

Section 60CC(3)

Section 60CC(3) of the Act sets out the additional considerations that the Court must look at when determining what is in the child’s best interests. Each of the matters set out under that section will be considered in turn were applicable in this matter.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

In his family report Mr H noted [X] to become visibly withdrawn and to lose eye contact when Mr H pursued the question of [X]'s wishes on the issue of relocation.
In his viva voce evidence, Mr H expanded on [X]'s unwillingness to discuss the question of relocation or any stated preference as to where he wishes to live as follows:
“I think there is a level of secure attachment he experiences with both his parents that his sense of loyalty and his sense of not wanting to be compromised. So even for a very little chap he is fully aware of some of the consequences that are going on around this, and he is striving, even in the most difficult of circumstances, being interviewed by a stranger, to maintain some level of neutrality around that because he loves both his parents.”
Given [X]’s very young age and his reluctance to express any views on the issue of where or with whom he should live, this is not a factor of relevant in the determination of this matter.

Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child).

As has been well documented in this judgment, [X] has a close, loving and meaningful relationship with both his parents.
In his family report at paragraph 32 Mr H notes that:
“…the parties had traditional parenting roles in the first two years of [X]'s life with Ms Hahn as the “stay at home mother” and the father as the “main breadwinner”. Her early parenting role in the first two years of [X]'s life undoubtedly resulted in a primary attachment between [X] and his mother”.
In paragraph 32 of his report Mr H notes that the mother has a:
“…subtle but strong belief that the quality of her relationship with [X] is deeper and more encompassing than the relationship he shares with his father.”

Mr H then states:
“In this regard, Ms Hahn shows a capacity to hold [X] in her mind’s eye and, even when he is not physically present, she is planning and thinking about his practical and emotional needs. This is no so apparent in Mr Trillin’s relationship with [X] which tends to be located in the present and measured more in “time spent” and activities undertaken.”
[X] has a very positive relationship with Mr W and describes him as “kind and fair.” [X] is careful to differentiate between the relationship he has with Mr W as his stepfather and the relationship he has with his father.
The mother describes [X] as a loving and doting big brother to [Y] and the sibling relationship is one the mother considers to be very important.
Whilst neither of the parents’ extended family live in [B], it is apparent from their evidence that both have ensured that [X] has been afforded the opportunity to develop strong bonds with his extended maternal and paternal family. There is no reason to doubt that the parties will continue to support [X]'s relationship with his extended family whatever his living arrangements are.

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.

The cooperative, committed and respectful manner in which these parties have gone about the parenting of their son has been exemplary.
As so eloquently noted by Mr H, past behaviour is a strong indicator of future behaviour and therefore the Court has absolute confidence that both these parents will continue to actively participate in all aspects of their son’s care to ensure his ongoing happiness.
It is also apparent that both parents fully understand the importance to [X] of his relationship with the other, now and into the future.

Section 60CC(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

Both parties have fulfilled their obligations to maintain [X] appropriately.
Both the mother and Mr W have indicated to the Court and to the father that in the event relocation to Hobart is permitted, the current child support paid by the father to the mother of $100 per week would be waived so that the father could utilise those funds to assist in the costs of him travelling to and accommodating himself in Hobart to spend time with [X] in accordance with both parties’ proposals.

Section 60CC(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

In the event the mother is permitted to relocate to Hobart with [X] there will be, as noted by Mr H in his report and confirmed in his viva voce evidence, a significant diminution in the quality and intimacy of the relationship between [X] and his father.
Whilst both parties’ proposals would enable [X] to spend alternate weekends and considerable holiday face to face time with the father, it will not be possible for the father and [X] to share the same level of daily interaction and shared routines that they currently experience. The father’s interactions with [X] at school, his interactions with [X]'s friends and his ability to participate in important events on short notice or provide immediate physical comfort to [X] in the event of trauma or calamity would be greatly diminished.
Mr H comments that with the passage of time, Tasmania will become the place where [X]’s life is centred and [B] will become the place that he visits to see the father.

Section 60CC(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

It is the mother's proposal that if permitted to relocate she will fund and facilitate [X] travelling to [B] on two weekends in each school term as well as during each of the school holidays, a total of 12 trips per annum.
It is the mother’s further proposal that the weekends that [X] spend with his father be adjusted so that they include any long weekend during term time.
The mother also proposes that the father travel to Hobart for two weekends in each term to spend time with [X], the cost of his travel and accommodation to be borne by the father. She proposes this cost be offset by she foregoing the current level of child support paid by the father in the sum of $100 per week, making a total contribution by her to the father’s travel costs of $5200 per annum. This amount would go quite some way towards offsetting the father’s travel and accommodation costs.
If permitted to relocate, the father's proposals do not differ greatly from those of the mother save and except he proposes that the mother should be responsible for his costs of travel to and accommodation in Hobart.
For [X] to travel from Hobart to [B] and back again will involve him in approximately 3 ½ to 4 hours travel each way. That this will be tiring for [X] is acknowledged by both of the parties.
Mr H states in paragraph 40 of his family report:
“…both the remaining proposals require return air travel by [X] on average 12 to 14 times a year and the requirements for unaccompanied travel on Qantas and Virgin are between 5 and 11 years of age. It should be remembered [X] is still at the lower end of this scale and if these options are considered it is recommended he is accompanied by a familiar adult on the first six occasions. There would be some fatigue involved in the term weekend times and this would need to be managed sensitively. The parties should come to agreement on this issue which can be addressed by earlier return times on the Sunday or later start times for his school on the Monday. Strategies and provisions for illness would need to be developed and it would be counter intuitive for [X] to travel if he was ill prior to the designated travel weekend.”
In his viva voce evidence, Mr H stated that given the parties are very good parents who are sensitive to [X]'s needs, he believes they will manage [X]’s travel to minimise its impact upon him. Mr H suggested that the parties should negotiate with [X]’s school so that after the weekends he has travelled to [B] to see his father, he is allowed to start school a little late on Monday.
Another practical difficulty in the event [X] is permitted to relocate to Hobart is the possible disruption to his extracurricular and social life in Hobart when travelling to [B] twice a term. This would be particularly if the weekend clashed with an important social or sporting activity. This will become of greater relevance as [X] becomes an adolescent.
Given the parties’ history of ensuring that [X]’s interests are foremost in their decision making it would be anticipated any clashes with important sporting or social events would be accommodated by the parties through mutual flexibility and cooperation.

Section 60CC(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

That the parties have and will continue to provide for the [X]'s emotional and intellectual needs is not an issue in this matter.
Whilst conceding that there is no evidence before this Court that there would be an impact on the mother in the event she was not permitted to relocate with [X] to Hobart, Mr H did comment that one of the factors the Court must consider when determining a relocation application is any impact on a parent's capacity to properly parent if their emotional or psychological health is negatively impacted in circumstances where relocation is not allowed.
The mother described her current circumstances as causing her significant psychological and emotional hardship as a result of the extended periods of separation from Mr W and her having to provide full-time care for [Y] without Mr W’s daily assistance. The mother is also understandably impacted by the current uncertainty as to the future of her now family unit and the financial stresses being placed upon her and Mr W in having to maintain two separate households.
Whilst both the mother and Mr W indicate they will abandon

Mr W’s hope of career advancement in Hobart in the event this Court does not accede to the mother's application to relocate, I do not believe it is inappropriate for this Court to speculate that such a setback will be a major disappointment to the mother and Mr W as it is apparent that the mother and Mr W are both vested in Mr W pursuing the opportunities both professionally and financially that a [omitted] position would provide for their family unit.

Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant

As set out previously in this judgement, [X] is at a developmental stage whereby he is cognitively able to maintain a meaningful relationship with the father in the event of relocation.

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

These parents have fulfilled the responsibilities of parenthood in a manner that the Court wishes its saw much more often. They are to be complemented.

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

If it were not for the position of [omitted] becoming available in Hobart, or had such a position become available within or around [B], the parties would not have had cause to invoke the jurisdiction of this Court.
As noted previously in this judgment, whilst Mr W is confident he will be offered the [omitted] position by his current employers in Hobart, this has not as yet occurred.
Despite Mr W’s confidence he will become [omitted], it would seem precipitous to allow [X] to relocate until such time as Mr W is officially offered that position by his employer in Hobart.
Perhaps anticipating this thinking, Counsel for the mother in her closing quite properly suggested that it would be appropriate that if the Court is of the view that it is in [X]'s best interests that he relocate to Hobart, that such relocation be conditional upon Mr W’s promotion to [omitted] being confirmed in writing by his employer.
It would also appear that if relocation is not permitted or if Mr W’s ambitions are not realised as he anticipates, there is no guarantee that he and the mother will necessarily be able to resume living in [B] if

Mr W is unable to obtain suitable employment in the [B] region.
Whilst the father evidenced a willingness to sensibly discuss [X]'s living arrangements in if the mother and Mr W were living in Victoria but not within reasonable proximity to [B], it is possible that, with the best of intentions, the parties may not be able to reach full agreement in relation to [X]'s living arrangements.

Section 60CC(m) any other fact or circumstance that the Court thinks is relevant.

Whilst properly conceding that the mother is not required to provide the Court with compelling reasons as to why it is she wishes to relocate, it was submitted on behalf of the father that a factor the Court can and should consider pursuant to this subsection is whether there is any necessity for the mother to relocate.
It is submitted on behalf of the father that in circumstances where there is no issue that [X] is settled, happy, progressing appropriately and has arrangements in place that enable him to have a shared care arrangement with both his parents such that he has developed very close, loving and intimate relationships with both his parents, it is incumbent on the mother to satisfy the Court that there is very good reason to disturb this arrangement.
It was argued on behalf of the father that there is no question that either of the parties in this matter have any mental health or addiction issues or that the mother or [X] have been the victims of domestic violence at the hands of the father. As such, it was submitted that these were not issues that necessitated relocation.
Finally, it was submitted on behalf of the father that there is no economic necessity to relocate as the financial benefit to Mr W if he is appointed [omitted] is only some $30,000.00 more than he earned in [B].
It is submitted by the father that the only impetus for the mother’s application to relocate is Mr W’s professional ambitions and this is not a sufficient reason that would necessitate the mother and [X] relocating to Hobart.

Conclusion

This matter relates to the mother's application to relocate from [B] to Hobart with the parties’ six-year-old son [X] and her now partner and their 10-month-old child in order for her partner to pursue his long held career ambitions.

When the possibility of Mr W obtaining a position in Hobart became known to the mother, she raised [X] relocating to Hobart with the father. He made it very clear that he was not in agreement with the [X] leaving the [B] region.
Despite the father's opposition, Mr W pursued the career opportunity in Hobart on the basis that such opportunities arise very rarely and that there was only a very limited time for an application to be made.
Mr W was successful in his application and as a result he moved to Hobart in July 2014. Since Mr W moved to Hobart, the mother and [Y] have been staying in [B] with Mr W’s sister until such time as this issue is resolved by the Courts.
The father is strongly opposed to [X] relocating to Hobart as he believes that their current close and loving relationship will be negatively impacted by [X]'s inability to continue to live in the shared care arrangement that has been in place since the parties separated when [X] was two years of age.
The parties have lived in [B] since 2007 and in that time the father has completed his tertiary education and embarked on a successful career as a [omitted] in the [B] region. He has become an active member of his church community and has forged social and professional relationships within the region. He has recently re-partnered and whilst that relationship is in its formative stages, he and his new partner have expectations that theirs will be a long-term and committed relationship.
Because of all these factors, it is the father's evidence that he is now committed to living in [B] and would not be able to move to Hobart in the event that [X] is permitted to relocate.
If permitted to relocate, both parties proposals for the time that [X] would spend with his father are strikingly similar in that they propose [X] spend two weekends in each school term in [B] with the father as well as substantial time in each of the term school holidays and long summer vacation.

Both parties also propose that [X] spend time with the father on two weekends each term in Hobart albeit they differ as to who should fund the cost of the father’s travel and accommodation in Hobart. The mother proposes that these costs be at the father's expense and the father proposes that the mother's bear these costs. The mother also proposes that she forego the $100 per week in child support that the father currently pays her so that he may utilise those funds in order to offset the costs incurred by him in his travel to and from Hobart.
Both parties are also in agreement that in the event relocation is not permitted and the mother and Mr W are able to return to live in the [B] region, the pre-existing flexible shared care arrangements be reinstated.
Because of the circumstances in which the mother currently finds herself, [X] is spending week about with each of his parents which enables the mother to travel to Hobart with [Y] in the week that [X] is with his father.
The report writer Mr H does not express a view as to whether relocation should be permitted. However, he clearly expresses the view that the optimum outcome for [X] is that both his parents continue to live in close proximity to each other and that the long standing care arrangements that have been in place for him continue so that he is able to maintain the strength and quality of the relationship he has with each of his parents into the future.
The tension between a parent’s right to pursue their own lives post-separation and the entitlement of a child to maintain a meaningful relationship with both his parents, particularly in circumstances where that child has a long-standing history of spending considerable time with two loving and functioning parents, lies at the very heart of the difficulties this Court faces when determining an application by one of the child's parents to relocate with that child.
That tension becomes even more pronounced when the distance of that relocation significantly impacts on the time the child can spend with the non-relocating parent because of the practicalities and the tyranny of distance.
Ultimately, however, this matter must be determined, as must all matters relating to the living arrangements for a child on the basis that the child's best interests are the paramount consideration, though not the only consideration.
[X] is a much loved and well nurtured little boy whose parents have to be complimented on how they have sensibly, cooperatively and respectfully approached their responsibilities as his parents since his birth and particularly since separation. Because of this, [X] has very close and loving relationship with both his parents.
It is the evidence of the report writer that whilst a relocation to Hobart will diminish the quality of [X]’s relationship with his father, he will maintain a meaningful relationship with his father given his age, the strength of his relationship with the father, the undisputed evidence that the mother will continue to support his relationship with the father and because each of the parties’ proposals will ensure that [X] continues to spend regular and ongoing time with his father both in [B] and Hobart.
Whilst there is justifiable criticism levelled at the mother and Mr W for “jumping the gun” in accepting the opportunity for Mr W to pursue his career aspirations in the face of the father's opposition to [X]’s relocation to Hobart, I do not believe it was done for any other reason than their belief that such opportunities arise very rarely and that there was a need to act quickly in order to ensure that Mr W did not miss the opportunity. I do not believe the decision was made in an attempt to circumvent the necessity for there to be either agreement from the father or a determination by this Court as to [X] relocating. This is particularly so in circumstances where both the mother and Mr W have given evidence to this Court, which is accepted, that if the mother’s application to relocate is unsuccessful they will return to Victoria.
I also do not accept the criticism levelled at the mother and Mr W that there was no compelling reason or necessity for the relocation. I will not be critical of Mr W for pursuing his long held professional aspirations. I accept his evidence that in so doing he was hoping to provide his family with a secure financial future.
Having considered all the relevant factors under the legislation I have formed the view that, on balance, it is in the best interests of [X] that in the event Mr W is successful in achieving the position of [omitted] with his employer in Hobart, the mother be permitted to relocate to Hobart as [X] will be able to maintain a meaningful relationship with the father and the mother and her new family will be able to establish their long term financial security and happiness.
Whilst Mr W has every confidence that the advancement and promotion he seeks will be offered to him by his current employer in Hobart by no later than February 2015, until it actually happens it is not a given.
I believe there should be a reasonable time limit placed on when

Mr W’s promotion is to be achieved otherwise the parties and [X] will continue to live with uncertainty for an indefinite period. As it is

Mr W’s evidence that the basis on which the position was advertised was the [omitted] position would be offered within 12 months, orders will be made that will allow relocation to Hobart upon Mr W being appointed to the role of [omitted] subject to such offer being made and accepted no later than 30 June 2015.
Until such time as there is written confirmation that Mr W has achieved the promotion he so desires in Hobart, relocation will not be permitted and the interim living arrangements for [X] shall continue as has been agreed between the parties.
In the event that Mr W is not successful in obtaining his promotion by 30 June 2015, then [X]'s living arrangements will ideally return to those that existed prior to the relocation issue becoming live. It is acknowledged however that there has to be some question around where [X] will live given the uncertainty as to where in Victoria the mother and Mr W would live as this is dependent upon where

Mr W obtains employment.
The parties’ proposals in relation to [X]'s living arrangements in the event of relocation are very similar, save as to the question of who will fund the father's travel and accommodation costs when the father travels to Hobart to spend time with [X]. In circumstances where the mother has agreed that in the event of relocation she will forego any requirements that the husband pay child support for [X] so that those monies can be utilised by the father to offset his travel costs, orders will be made for the father to bear the accommodation and travel costs when [X] spends time with the father in Hobart.
The parties’ proposals also slightly differ in relation to [X]'s time in the second term holidays given that that is when [X]’s birthday falls. It is appropriate I believe that in one year [X] spends the week of his birthday with the father and in the other year he spends the week of his birthday with the mother.
Whilst I acknowledge the father will be bitterly disappointed with this decision, I am satisfied that given his commitment to his son's best interests, he will do everything within his power to ensure that [X] settles happily in Hobart and that he and [X] continue to have a close and loving relationship.
I am also satisfied that the mother genuinely understands how important it is for [X] to continue to have the close and loving relationship he currently shares with the father and that she will ensure that she does everything required of her to enable [X] to maintain that relationship into the future.

I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of Judge Bender

Associate:

Date: 24 October 2014

[2014] FCCA 2426

24 October 2014

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