Haidar & Jardin
[2024] FedCFamC2F 65
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haidar & Jardin [2024] FedCFamC2F 65
File number(s): MLC 12505 of 2022 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 25 January 2024 Catchwords: FAMILY LAW – PARENTING – relocation – mother seeks child (aged 6) live with her in Town B– child currently lives with mother in Suburb C and Town B and spends time with the father five nights per fortnight – evaluation of competing proposals – orders made for child to live with mother in Town B and to spend alternate weekends with father during school terms – orders provide for child to spend greater time with father if he moves closer to Town B – order regarding child’s school attendance in Town B. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 62B, 65D, 65DA, 65DAA, 65DAC
Cases cited: A v A: Relocation Approach (2000) FLC 93–035; [2000] FamCA 715
Adamson & Adamson (2014) FLC 93–622; [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Asher & Wilkinson (2020) FLC 93–945; [2020] FamCAFC 44
Bilz & Breugelman [2013] FamCA 578
Blinko & Blinko [2015] FamCAFC 146
KB & TC (2005) FLC 93–224; [2005] FamCA 458
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102
Malcolm & Monroe (2011) FLC 93–460; [2011] FamCAFC 16
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93–405; [2009] FamCAFC 92
Morgan & Miles (2007) FLC 93–343; [2007] FamCA 1230
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Re: TC and JC (Children: Relocation) [2013] EWHC 292
Rochford & Fitzhugh [2019] FamCAFC 218
Sacha & Sacha [2020] FamCA 417
Sayer & Radcliffe and Anor (2012) 48 Fam LR 298; [2012] FamCAFC 209
Searson & Searson (2017) FLC 93–788; [2017] FamCAFC 119
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Simmons and Anor & Kingsley (2014) FLC 93–581; [2014] FamCAFC 47
Taylor & Barker (2007) FLC 93–345; [2007] FamCA 1246
U v U (2002) 211 CLR 238; [2002] HCA 36
Ulster & Viney (2016) FLC 93–722; [2016] FamCAFC 133
Wagstaff & Wagstaff (2022) 65 Fam LR 461; [2022] FedCFamC1A 119
Division: Division 2 Family Law Number of paragraphs: 232 Date of hearing: 25 – 27 October 2023 Place: Melbourne Counsel for the Applicant: Mr Sweeney Solicitor for the Applicant: Barbayannis Lawyers Counsel for the Respondent: Ms Hannan Solicitor for the Respondent: MDL Law ORDERS
MLC 12505 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HAIDAR
Applicant
AND: MR JARDIN
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Parental responsibility
2.The mother and father have equal shared parental responsibility for the child X born in 2017 (“X”).
X’s care arrangements
3.X live with the mother in Town B.
4.X spend time with the father as follows:
(a)During school term periods:
(i)Each alternate weekend, from 5:00 pm on Friday until 7:30 am on Monday or until 5:00 pm on Monday if Monday is a public holiday; and
(ii)In the event that the father obtains accommodation within 120 kms of Town B, each intervening week from the conclusion of school on Wednesday until the commencement of school on Friday;
(iii)In the event the father obtains temporary accommodation (such as an hotel or short term rental) in the greater City D area, for up to one week each term, coinciding with and incorporating with the time X would ordinarily spend with the father pursuant to this order, provided the father gives the mother at least 21 days’ notice in writing and takes X to his extra-curricular activities;
(b)During all school term holidays, for the first half of the holidays in odd numbered years and the second half of the school holidays in even numbered years;
(c)For half of the long summer holiday period on a “week about” basis (in alternate weeks), commencing with the parent who would have had the care of X on the first weekend of the holidays pursuant to order 4(a)(i) if not for the holidays; and
(d)At such further or other times as agreed between the parties.
5.In the event X is in the mother’s care on the following occasions, he spend additional time with the father as follows:
(a)On Father’s Day weekend from 5:00 pm Friday until 7:30 am on Monday; and
(b)From 10:00 am on Christmas Eve until 12:00 noon on Christmas Day in even numbered years and from 12:00 noon on Christmas Day until 5:00 pm on Boxing Day in odd numbered years.
6.In the event X is in the father’s care on the following occasions, his time with the father be suspended and X spend time with the mother as follows:
(a)On Mother’s Day weekend from 5:00 pm on Friday until 7:30 am on Monday; and
(b)From 12:00 noon on Christmas Day until 5:00 pm on Boxing Day in even numbered years and from 10:00 am on Christmas Eve until 12:00 noon on Christmas Day in odd numbered years.
7.For the purpose of the term holidays in order 4(b):
(a)Each term holiday period is deemed to commence at the conclusion of school on the last day of required school attendance;
(b)Each term holiday period is deemed to conclude at the commencement of the first day of required school attendance in the new school term; and
(c)The midpoint will be 5:00 pm on the middle day of the holiday period and in the event there is an odd number of nights, X spend an additional night with the mother in odd numbered years and an additional night with the father in even numbered years.
8.For the purpose of the long summer holiday period pursuant to order 4(c):
(a)Each long summer holiday period is deemed to commence at the conclusion of school on the last day of required school attendance of the relevant school year;
(b)Each summer holiday period is deemed to conclude at the commencement of the first day of school required attendance in the following school year; and
(c)Changeover occur at 5:00 pm each Friday.
Communication with parents
9.The mother and father each facilitate X communicating with the other parent via telephone, FaceTime or other video call at all reasonable times he is in their respective care, including upon X’s request.
Changeover
10.For the purpose of X moving between the care of his parents, unless otherwise agreed in writing:
(a)Upon the father’s election and with at least 24 hours prior notice to the mother in writing, changeover take place to and from X’s school when X is attending school, at the conclusion and/or commencement of school as applicable rather than the times provided in orders 4(a)(i);
(b)In the event that the father remains living in Suburb L, all changeovers otherwise occur at Hungry Jacks in E Street, Suburb F; and
(c)In the event the father obtains accommodation closer to X’s school, all changeovers otherwise occur at a midway point between the father's residence and X’s school.
Attendance at events
11.Both parents be permitted to attend X’s extra-curricular activities or school events to which parents are normally invited.
Exchange of / access to information
12.The mother and father each keep the other advised of their current telephone number, email address and residential address and advise the other of any change to these details within 48 hours.
13.The mother and father each keep the other advised of the names and addresses of any treating medical or allied health practitioner who treats X and authorise such treating practitioner to provide to the other parent information that they are lawfully able to provide about X.
14.The mother and father each inform the other as soon as is reasonably practicable in the event of an emergency, medical condition, significant health issue or significant illness suffered by X.
Passport
15.Each of the mother and the father sign all documents and do all acts and things required to apply for and renew an Australian passport for X within seven days of receiving a written request from the other parent.
16.The mother retain X’s passport and provide it to the father within seven days of receiving a written request and the father return X’s passport to the mother within seven days of returning from overseas travel.
Interstate and international travel
17.The mother and father each be permitted to travel internationally with X on the following conditions:
(a)No less than 30 days prior to the proposed travel, the travelling parent provide the other parent with an itinerary for the trip, including arrival and departure details; and
(b)The travelling parent provide the other parent with a means of communicating with X by telephone or video when they are overseas.
18.In the event that the mother and father propose to travel either overseas or interstate with X:
(a)Any suspension of the other parent’s time with X be limited to 14 days each calendar year;
(b)Notice of suspension must be provided to the non-travelling parent, no less than 60 days prior to the proposed suspension and travel must not conflict with any prearranged travel by the other parent;
(c)Make-up time will be provided to the non-travelling parent with such time to take place within the same holiday period if possible or otherwise in the following holiday period;
(d)No less than 30 days prior to the proposed travel, the travelling parent provide the other parent with an itinerary for the trip, including arrival and departure details; and
(e)The travelling parent provide the other parent with a means of communicating with X by telephone or video when they are overseas or interstate.
School enrolment
19.The mother and father sign all documents and do all acts and things required to enrol X to attend G School, City D to commence in Term 1 2024, conditional upon the mother assuming responsibility for X’s school fees at that school.
20.X thereafter attend at G School, City D unless otherwise agreed in writing by the parties.
Obligations, consequences of contravention and assistance with orders
21.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Procedural
22.All extant applications for parenting orders be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS:
INTRODUCTION
These proceedings concern X, aged six.
Ms Haidar is X’s mother and Mr Jardin is his father. I will refer to them as the mother and the father, without intending any disrespect to them.
X’s care arrangements are governed by final parenting orders made by consent on 10 March 2020 (“the 2020 orders”) as amended by interim orders made by consent in these proceedings on 18 January 2023 (“the January orders”).
Pursuant to those orders, the parties have equal shared parental responsibility for X, he lives with the mother and spends time with the father. In particular, X currently spends five nights per fortnight with the father during school term periods – on alternate weekends from Friday to Monday, and in alternate weeks mid-week, from Wednesday to Friday. He also spends time with each of his parents during school holidays and on special occasions.
Both parents have re-partnered. The mother has remarried Mr J. Mr J has three children (aged 12, 10 and 8 at the time of the final hearing) who live with their mother in Town B. Parenting orders made in relation to Mr J’s children in late 2020 provide for them to spend time with him (five nights per fortnight) if he has accommodation in the Town B/City D/Region H area. During 2023, the mother and Mr J maintained two rental properties to facilitate their respective parenting orders – an apartment in Suburb C and a house in Town B.
The father is engaged to marry Ms K. They live in Suburb L and have a child together, X’s half-brother, M. M was only an infant at the time of the final hearing.
During 2023, X lived in Suburb C with the mother during the week during school term periods, save for two nights a fortnight he spent with the father in Suburb L. On weekends, he alternated between living with the mother in Town B (with Mr J and his children) and spending time with the father in Suburb L (with Ms K and M).
The mother wishes to live permanently in Town B with X – with Mr J and his children when they are in his care. If this were to occur, because of the distance between Town B and Suburb L (approximately two hours by car), the parties agree it would not be practicable for X to spend time with the father mid-week. His time with the father would therefore be reduced during school term periods from five nights per fortnight to three nights per fortnight, only alternate weekends. Both parties agree this is not ideal. With the aim of avoiding a reduction in X’s time with the father, the mother proposes that if the father moves within 120 kilometres of Town B (for example, Suburb F or Suburb N), X continue to spend five nights with him per fortnight during school term periods.
The father seeks that X continue living with the mother in Suburb C and that the time X spends with him increase to six nights per fortnight. In the alternative, if the mother lives in Town B, the father formally seeks X live with him in Suburb L and spend time with the mother for two nights on alternate weekends and during school holidays. At the final hearing, the mother made it clear she would not relocate to Town B without X and, on that basis, the father did not press his application for X to live with him.
The proceedings arise from the wish of both parties to pursue a life with their new partners in a place of their choosing. That this dispute has to be determined by the court is unfortunate because the parties have otherwise generally been able to make arrangements for X by agreement, including to make alternate arrangements for X to accommodate work and other commitments when required. It is clear X is doing well, he is well loved and cared for by both parents and enjoys close relationships with his other family members.
THE ISSUES
In the above circumstances, the following issues require determination:
(a)Should X live in Town B or Suburb C?
(b)Depending on where X lives, what time should he spend with the father?
(c)If X lives in Town B, should an order be made providing for the school he is to attend? If so, is it in X’s best interests to attend G School, City D or another school?
(d)Are the other parenting orders agreed upon by the parties in X’s best interests?
BACKGROUND
The parties began living together in 2006 and married in 2012. X is their only child together. They separated on a final basis in August 2019. At that time X was aged two. A divorce order was made in late 2021.
Following the parties’ separation, the mother moved out of the former family home with X to stay with her parents, in their home in Town O.
The mother gave evidence X initially spent time with the father during the day each Friday, at his parents’ home in Suburb Q. She deposed she initially required X’s time to be supervised given her concerns about the father’s drug use during the parties’ relationship and his behaviour, which she described as increasingly erratic, including an alleged incident of family violence during which he hurt her arm. The mother sought the father undertake a supervised hair follicle test, but he did not do so. She reported that because of her position, the father became angry and hostile towards her, she became frightened and later applied for an intervention order.
In his trial affidavit, the father gave evidence both parties used drugs recreationally during their relationship. He denied using drugs any night while X was in his care but did not expressly deny using drugs after separation. In relation to the request for him to undertake a supervised hair follicle test, he deposed he provided over-the-counter saliva and urine tests and numerous supervised urine screens but considered it was unfair to expect him to pay $2,000 for hair follicle testing.
On 2 October 2019, the father commenced court proceedings, seeking parenting and financial orders.
In late 2019, the father agreed to undertake a hair follicle test and it was negative for illegal drug use.
On 10 March 2020, final property and parenting orders were made by consent (“the 2020 orders”). At this time the mother was living with X in Town O, with her parents, and the father was living in Suburb P. The 2020 orders provided (in summary and among other things) for the parties to have equal shared parental responsibility for X, that he live with the mother and for him to spend increasing time with the father, up to five nights per fortnight during school term periods from June/July 2021. The 2020 orders included a notation recording the mother’s intention to withdraw her pending application for an intervention order.
The father met Ms K in late 2019 and Ms K deposed they commenced a relationship in 2020. At that time, Ms K lived in a share house in Suburb R and spent time with the father at his apartment in Suburb P. In late 2021, they moved into a rental property together in Suburb L. Ms K was born in Western Australia and her family continues to live in Western Australia. She spent three years living and working abroad, from 2016 to 2019.
In or around early 2022, the parties agreed X would attend T School in Suburb U, when he commenced his first year of school in 2023. They agreed upon T School following consultation between them, being a school they considered suitable for X between their respective homes at that time (Town O and Suburb L).
The mother commenced a relationship with Mr J in late 2021. In mid-2022, the mother and X moved in with Mr J and his three children, living in a rental property in Suburb V. (The father disputed this date during his cross-examination, but the mother was not challenged in respect of her evidence and I accept it.) The mother and Mr J became engaged in 2022 and were married in 2023.
In late 2022, Mr J and his former wife consented to orders which allowed Mr J’s former wife and children to relocate to Town B. The orders[1] provide for their children to spend time with Mr J from the commencement of the 2023 school year as follows [my emphasis added]:
6.Conditional upon and subject to the Father obtaining accommodation in the [Town B, City D, Region H] area, the children will spend time with the Father during the school term as follows:
6.1 In the first week of a fortnightly period, from the conclusion of school on Wednesday (or 10:00am in the event of a non-school day or curriculum day) until the commencement of school on Friday (or 5:00pm in the event of a non-school day or curriculum day); and
6.2 In the second week of a fortnightly period, from the conclusion of school on Friday (or 10:00am in the event of a non-school day or curriculum day) until the commencement of school on Monday (or 5:00pm in the event of a non-school day or curriculum day).
[1] Exhibit A-1.
The orders also provided for Mr J’s children to attend at G School, commencing in 2023.
Each of the mother and Mr J gave evidence the mother was not involved in the negotiations when the orders were made or consulted about them. Mr J deposed he consented to his children relocating to Town B upon legal advice, following strong indications from the bench during a final hearing that the relocation would be granted and there was a prospect of his children spending less time with him if that occurred. The mother said she supported Mr J consenting to the orders, on the basis that he maintained some control over the outcome of the proceedings, rather than face the uncertainty of a judicial decision.
In or around late 2022, the mother informed the father by email of the orders, of her wish to move with X to Town B and to enrol him to attend G School.[2] The father initially replied a week later requesting a redacted copy of the orders. He then responded with a lengthy letter sent by email two weeks later, conveying his objection to X moving to Town B and attending G School. He proposed X attend T School and suggested as an alternative:
… [the mother] and [Mr J] could move to the city, halfway between your children’s schools, allowing them to maintain regular, consistent, quality time with their other parents and keep a stable home life. This would be an hour's commute for both of you, which seems like a reasonable compromise and would put [X]’s wellbeing and best interests above your own.
[2] Annexure A to the mother’s trial affidavit.
Once it became apparent the parties would not be able to agree, the mother engaged lawyers who wrote to the father in late 2022, outlining her proposal for X to move with her to Town B and to attend at G School and for the current parenting arrangements to continue if the father moved closer to Town B.[3] She otherwise foreshadowed commencing court proceedings if the father did not agreed to X moving to Town B.
[3] Annexure B to the mother’s trial affidavit.
On 8 November 2022, the mother filed her Initiating Application commencing these proceedings. The father filed his material in response, on 23 November 2022. A first court event was conducted on 24 November 2022 and the matter was listed for an interim hearing on 19 January 2023.
In late 2022, the mother and Mr J secured their rental property in Town B and over the next six weeks, moved into that property. In early 2023, they also rented the apartment in Suburb C. The mother explained in her trial affidavit that the purpose of renting the Suburb C apartment was to allow X to attend C School and to facilitate him living in both Suburb C and Town B pending a determination of her application to for X to live with her in Town B on a permanent basis. She explained she was looking for a temporary solution pending the outcome of these proceedings and that Suburb C was as close to Town B as possible while maintaining X’s time with the father and offering a good school for X, in proximity to Ms K’s place of work which would assist with changeovers to and from school.
On 18 January 2023, interim orders were made by consent (“the January orders”). Those orders remain in force and provide (in summary) for:
(a)X’s enrolment at C School, commencing in term 1 2023;
(b)X to spend time with the father during school term periods, each alternate week from the conclusion of school on Wednesday to the commencement of school on Friday and in intervening weeks, from the conclusion of school on Friday until the commencement of school on Monday; and
(c)X to spend half of each school holiday period and time on special occasions with each of his parents.
Pursuant to the January orders, Dr W prepared a family report dated 27 April 2023 (“the family report”). Dr W’s recommendations included:
(a)If the court determines X is to remain living in proximity to C School, possible options for X to spend five nights each fortnight with the father during school term periods and equal time with the parties during school holidays. She recommended it would be important that these arrangements facilitate X spending time with his step-siblings;
(b)If the court decides X can relocate to Town B and the father remains living in Suburb L, X continue spending each alternate weekend with the father from after school on Friday until Sunday evening. She also recommended X spend additional time with the father during school holidays (up to 10 days during school term holidays and up to four weeks during the long summer school holidays) and up to a week at a time during school term periods if the father is able to obtain temporary accommodation (such as a hotel) near Town B;
(c)Recommendations for changeover (at school or each parent’s home) and for regular communication between X and his parents; and
(d)That the father engage in psychological therapy over a period of six months to gain greater insight into his emotional expression and how it may impact his relationships with others. Dr W recommended his treatment include exploring his distrust of the mother and work on strategies for managing it in a way that promotes healthy co‑parenting and a positive relationship with X.
On 31 May 2023 a compliance and readiness hearing was conducted by Chief Judge Alstergren. Orders were made listing the matter before me for a final hearing of three days commencing on 25 October 2023 and trial directions were made in preparation for that hearing.
The current circumstances of the parties and their partners
The mother and Mr J
The mother is 41 years old. She informed Dr W she has been prescribed anti-depressants since she was 18 years old, due to experiencing flat affect. Otherwise, aside from suffering from chronic asthma, the mother is in good health.
The mother divides her time between Suburb C and Town B. During school terms, she mostly lives in Suburb C during the week when X is in her care. On weekends and during school holidays, she lives mostly in Town B. She consistently explained she regards Town B as her primary residence, she feels like she spends more time there, and that “it feels like home”.
The mother was cross-examined about the time she spent in each of Suburb C and at Town B at length and explained her living arrangements on a fortnightly basis during school term periods as follows:
(a)In one week (following weekends X has been with her in Town B), she usually returns to Suburb C with X on Sunday evening, but sometimes on Monday morning, and stays there with him until Friday morning. Sometimes they travel to Town B mid-week, for family birthdays for example. She usually returns to Town B on Friday mornings after dropping X to school, before he spends the weekend with the father. In these weeks, she usually spends up to five nights in Suburb C. Mr J usually joins the mother and X on Monday (after his children have spent Sunday night with him) and stays with them in Suburb C until Friday, as his children do not ordinarily spend mid-week time with him this week;
(b)In the other week (following weekends X has spent with the father in Suburb L), the mother and Mr J usually travel from Town B to Suburb C on Monday afternoon, to collect X from school. Mr J stays with the mother and X in Suburb C on Monday and Tuesday nights and he then returns to Town B on Wednesdays for his children to spend time with him there (Wednesday and Thursday nights) and stays until the weekend. When X is spending time with the father mid-week (Wednesday and Thursday nights), the mother sometimes stays overnight at her parents’ home in Town O on Wednesdays and/or Thursdays but she “quite often” travels to stay overnight in Town B. She then returns to Town B with X after school on Friday, for him to spend the weekend there with her, Mr J and Mr J’s children. In these weeks, she usually spends two or three nights in Suburb C;
(c)When pressed in cross-examination about the time she spends in Suburb C mid-week without X, the mother said, appearing visibly upset, “I try not to be in [Suburb C] because I’m alone there, it’s isolating”; and
(d)The mother estimated she spends similar time in Suburb C and Town B during the week, during school periods, but that “it’s really hard, it’s very split.”
This cross-examination highlighted for me the disruption experienced by the mother maintaining two residences and how difficult she finds it.
The mother is a health care worker and operates her own allied health business. She deposed she conducts that business from her home in Town B. She works each alternate Thursday in another town and has been undertaking work in Town O, from her parents’ home, but is training another health care worker to take over that clientele and will then receive a passive income from that work. She cannot work from her home in Suburb C, as it does not have the required facilities or setup for clients. She offers home visits to some clients in the Suburb C area, with whom she has a relationship and trusts to attend their home but she limits home visits for her personal safety. The mother was also working as a health care worker in City D up until mid‑2023, undertaking one shift per week. She gave evidence she was not undertaking work at the time of the final hearing due to increased volume of work in her business, but gave evidence that work is available to her as a “safety net” if required.
The mother gave evidence of the flexibility in her work which enables her to be heavily involved in X’s school and extra-curricular activities, including volunteering two days each week for classroom reading, assisting at school activities and as a parent volunteer for an inter‑school sports competition. She has been primarily responsible for X’s extracurricular activities, including sports and music lessons, and his health care needs such as optometry and speech pathology.
The mother shares a close relationship with her parents, who live in Town O. She gave evidence they currently visit her in Town B on average once a month and she stays with them regularly in weeks X is spending time with the father mid-week. However, they plan to move to Queensland in 2024. Her brother is deceased and his young son (X’s cousin) lives with his mother near Town O. The mother’s sister lives in Suburb Z with her husband and three children (X’s cousins), aged 15, 13 and 11 at the time of the final hearing. The mother deposed she has grown distant from her sister, who leads a busy life with her own three children. The mother’s oldest niece comes to stay with her on average for three nights each school holiday period.
Mr J is a professional and operates his own business, working primarily from home and occasionally meeting with clients in Melbourne. He has flexibility in his work enabling him to be actively involved in the care of his children and to attend their school and extracurricular activities. Mr J’s children spend time with him in Town B for five nights each fortnight pursuant to orders. He shares his time between Town B and Suburb C as described earlier in my reasons.
The father and Ms K
The father is aged 40. The mother no longer has concerns about the father’s drug use and no concerns were raised by the parties in respect of his health.
The father lives in a rented home in Suburb L with Ms K and M.
Dr W reported that at the time of her interviews (March 2023), he had been employed as a professional for approximately 12 months, covering an area between Melbourne and suburbs, and was required to visit clients three to four days a week. He informed her his hours were flexible, enabling him to take X to and from school as needed and to stop work between 3.00 pm and 8.00 pm on days X is in his care. In his trial affidavit, the father deposed he started a new job with another company in mid-2023, working within the same industry, with the same client base. He described that he spends three to four days on the road visiting clients in the suburbs of Melbourne, including client facilities within a drive of 25 to 30 minutes each way in peak traffic from Suburb L.
Ms K is employed in what she describes as her “dream job” as a professional. She is currently on parental leave. Ordinarily, she is required to work three days each week from the office of her employer in Melbourne. She otherwise works from home two days a week. She has flexibility when working in the office or from home, to structure her work day to accommodate any personal commitments. Before commencing leave, she regularly took X to and from school in Suburb C.
The father described that X spends time with his extended paternal family as follows:[4]
(a)The father’s father and step-mother, who live in Suburb Q: fortnightly;
(b)The father’s mother, who lives in Suburb AA: weekly;
(c)The father’s grandmother, who lives in Suburb BB: occasionally, several times a year;
(d)The father’s aunt, who lives in Suburb BB: occasionally, several times a year; and
(e)X’s cousins: occasionally.
[4] In his letter sent to the mother by email on 14 October 2023 (Annexure A to the mother’s trial affidavit) and his parenting questionnaire (as amended) filed on 10 January 2023 as put to the father in cross-examination.
X’s current circumstances
X is currently six and will soon turn seven.
Both parents described X in positive terms and I have the impression he is a delightful boy, much loved by both of his parents, their partners and extended family members.
The mother described to Dr W that X has experienced some difficulties regulating his emotions but has become adept at managing his frustration. He attended a paediatrician in mid-2023 to discuss a medical condition. The father described to Dr W that this presents when excited.
When living with the mother in Suburb C, X has his own bedroom. When living with her in Town B, X chooses to share a bedroom with Mr J’s seven-year-old son. There is room for him to have his own room if he wishes to. At the father’s home in Suburb L, X has his own room.
X has just completed his first year of school (prep) at Suburb C School, where he has been progressing well academically and socially.
C School is approximately 400 metres from the mother’s apartment and they walk to and from school when X is living with the mother. When spending time with the father, X is driven to and from school by the father or Ms K. As explained later in my reasons, I find this trip takes approximately 45 minutes to one hour.
X attends sports lessons once a week, on Tuesdays with the mother and Mr J. Over the winter, he enjoyed sports with the mother and Mr J in Region S. The mother deposed X was looking forward to commencing a sports program this summer with a sports club, near Town B, and is able to participate in that program each alternate weekend.
X spends half of each school holiday period with each parent and he spends time with each of them for special occasions. Both parents gave evidence of taking holidays with X.
THE FINAL HEARING
The final hearing was conducted over three days. Both parties were represented by counsel.
The documents relied upon by each of the parties are set out in their case outlines. Their final proposals were contained in a jointly prepared document tendered at the conclusion of the final hearing, identifying which orders were agreed and in respect of issues in dispute, the orders proposed by each party (“the joint minute”).
I make some initial comments in relation to the evidence of each of the parties and their witnesses below and then consider their evidence in more detail as relevant to the issues in dispute.
EVIDENCE
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
I have read all documents upon which the parties have relied and the tendered exhibits. I have also had the benefit of observing the appearance and demeanour of the parties and their witnesses when giving their evidence. It has not been possible to include every aspect of the evidence of the parties and the witnesses in these reasons. However, I have taken all the evidence into account.
The mother
The mother was polite and respectful when cross-examined. She gave thoughtful consideration to questions asked of her and answered informatively. Her evidence when cross-examined was consistent with her evidence on affidavit. She provided sound explanations for changes in her proposals during the course of the proceedings.
The mother appeared understanding of the father’s position and genuinely concerned to support X’s relationship with him. She readily made appropriate concessions, including for example that X spending less time with the father is not ideal. I had the impression from her evidence that her proposals to maintain their relationship and the flexibility offered in respect of those proposals, were sincere.
At times when giving evidence, the mother became visibly upset and cried, consistently with her evidence that she finds her current living arrangements stressful and is frightened for the future, if X is not able to live with her in Town B.
Mr J
Mr J’s evidence was consistent with that of the mother and supportive of her proposals. I found his evidence showed respect for X’s relationship with the father.
Ms DD
Ms DD is the de facto partner of Mr J’s brother and described a close friendship with the mother. Ms DD and her partner live in Town B with their two year old daughter and her two children from a previous relationship. Ms DD gave evidence by way of affidavit and was not cross-examined. Her evidence supported that of the mother and Mr J, particularly in relation to X’s relationships with Mr J’s children and her children and their connections and supports in Town B.
Ms CC
Ms CC is the mother’s treating psychologist. She was cross-examined via Microsoft Teams. Her evidence in cross-examination was consistent with her report and the evidence given by the mother. I will return to consider her evidence later in my reasons, which I found of assistance in understanding the impact on the mother of her current living arrangements.
The father
In contrast to the mother, the father presented as defensive, rigid in his views, and unable or unwilling to consider perspectives other than his own. He regularly failed to answer questions directly, answering with his own questions or narrative.
Dr W described that when she interviewed the father, he initially impressed as being “frustrated and angry.” She attributed this to fear of his relationship with X being impacted and hostility towards the mother. The father’s hostility toward the mother was evident during his cross-examination.
The father openly blames the mother for these proceedings, describing the current situation as “a problem [the mother] has created.” He sees it as her responsibility to come up with a solution that does not impact his living arrangements or the time X spends with him.
He did not accept the mother was genuinely trying to balance her wish to move to Town B with X maintaining a relationship with him. When cross examined in respect of her proposals, he said, “she is doing whatever she can to get what she wants” and he agreed when it was put to him that he thinks her proposals are “a ploy”, “to get down to [Town B] at all costs.”
The father was reluctant to make any concessions, including for example, to give any credit to the mother for the positive relationship X shares with him. This was highlighted in the following cross-examination:
Counsel for the mother: Do you give her any credit for helping build the relationship between you and [X]?
Father: I appreciate that she has not tried to poison the relationship. Definitely.
Counsel: Deal with my answer if you could. The question I’ve asked you.
Father: Yes, I give her credit for that for sure. Yep.
Counsel: Is it hard?
Father: Is what hard?
Counsel: Is it hard to think about it and just say, look she’s been great. … Is it hard to give her credit for the fact you’ve got a great relationship with [X]?
Father: Well, I don’t know why I’d give her credit for my relationship with [X]. I’d give credit to [X] and myself for my relationship with [X]. We’re the ones who built the relationship. … I don’t credit other people for the relationships I have with third parties.
When it was put to the father by the mother’s counsel that he was argumentative, the father responded that he was “precise”. When asked if he was argumentative with the mother in the same way, he again answered that he is “just precise.” He said, “I’m not argumentative … maybe I am” and then laughed. Later in his evidence he said “it could be fair” to describe him as argumentative. I found the father’s manner during cross-examination was on numerous occasions argumentative as described by counsel for the mother.
Having regard to the father’s manner in the witness box, I accept the mother’s evidence that she finds personal interactions with him stressful.
I find the father on at least two occasions gave evidence that was inaccurate, to present his case in a more positive light:
(a)He maintained the mother had no basis to restrict X’s time with him after separation, based on concerns around his drug use and that she had made up evidence to support her intervention order application. He initially gave emphatic evidence when cross-examined that he “definitely wasn’t” using drugs after the parties separated. He was then cross-examined about his account to Dr W that “since separation, his drug use had decreased, and [he] denied any drug use since late 2021.” When presented with the inconsistency in his evidence, he gave evidence he used illicit drugs once in late 2021. Dr W consulted her notes during cross-examination and gave evidence there was no suggestion in her notes the father told her he had only used drugs once since separation. Even if the father’s account of using drugs only once after separation is true (which I find unlikely given his account given to Dr W), his initial denial of using drugs after separation when cross-examined was untruthful; and
(b)When cross-examined about his ability to move closer to Town B before M was born, the father initially asserted the mother had not made a request of him to move closer to Town B when she first raised her wish to relocate with X. When he was presented with copy correspondence from the mother and her lawyers in September and October 2022, the father said he earlier “misspoke” and acknowledged the mother had proposed from the outset that he move closer to Town B. He then insisted this was a “suggestion” rather than a “request” made by her.
Whilst this case does not require the determination of significant factual disputes, in light of the above observations in relation to the parties’ evidence, in respect of matters where the parties’ evidence does not align, where there is no corroborating evidence and the mother’s evidence is plausible, I prefer the evidence of the mother over the evidence of the father.
Ms K
Ms K’s evidence was generally consistent with the evidence given by the father and supportive of his position. When cross-examined, she confirmed the father is vehemently opposed to any proposal that involves X moving to Town B.
Family report writer
Dr W is a forensic psychologist specialising in psycho-legal assessment. She was appointed as a single expert pursuant to the January orders, to prepare a family report.
Both parties deposed to numerous factual inaccuracies in the family report. Importantly, the father gave evidence that when undertaking the psychological testing undertaken by Dr W, he answered questions about his “spouse” referring to his relationship with Ms K rather than his relationship with the mother. Dr W confirmed this would have impacted the interpretation of aspects of his psychological testing in her report.
From Dr W’s oral evidence, it became apparent:
(a)She had considered the father’s alternate proposal for X to live with him in Suburb L (and spend only two nights per fortnight with the mother) when formulating her recommendations but had not included any analysis of that proposal in her report;
(b)She had proceeded with her report on the basis it would be impracticable for X to continue spending time with the father five nights each fortnight and had not explored the possibility of the father moving closer to Town B as proposed by the mother. She did so because the father said he “needed to remain close to [Suburb L] due to his [and Ms K’s] extended family and friends living nearby and the need to draw on them for support following the birth of their child.” She acknowledged when cross-examined the distinction being unable to move and unwilling to move was significant and would impact her recommendations. This was not explored in her report;
(c)She was not aware of Mr J’s orders, requiring Mr J to have accommodation in Town B for his children to spend time with him during school term periods; and
(d)She did not in my view adequately explore in her report the impact on X of living across three homes with his parents. She had proceeded on the basis Suburb C was X’s home with the mother and Town B was equivalent to a holiday house for him, consistently with X describing the Town B property as the “holiday house”, without addressing X’s alternate description that he lives in two homes with the mother, with different people living in each home. She did not take into account that Town B was the place the mother considered to be her home, being the residence she and Mr J share with their children. She did not address the practical difficulties of the mother and Mr J maintaining two residences.
I consider each of these omissions to be deficiencies in Dr W’s report. To her credit, she acknowledged these matters when cross-examined.
I will return to Dr W’s evidence in my reasons as relevant to the issues requiring determination.
THE LAW
As explained by the Full Court in Sayer & Radcliffe and Anor[5] and numerous other decisions of this court, “[a]ll relocation decisions are difficult, not the least because of the serious ramifications involved for the parents and the children.” That being said, relocation cases are not to be treated as a special category of case and are to be determined like all parenting matters, by considering the best interests of children in the context of the legislative framework provided by Part VII of the Family Law Act 1975 (Cth) (“the Act”).[6]
[5] For example, the Full Court in Sayer & Radcliffe and Anor (2012) 48 Fam LR 298 at [53] (“Sayer & Radcliffe and Anor”).
[6] Morgan & Miles (2007) FLC 93–343 at [72]–[73]; Sayer & Radcliffe and Anor at [47].
The mother seeks an order that she be “permitted” to relocate to live with X in Town B. In Wagstaff & Wagstaff,[7] Aldridge and Jarrett JJ noted that such language was the subject of criticism by the High Court in AMS v AIF.[8] In particular Kirby J explained in AMS v AIF:[9]
…it would be preferable that such references to “permission” to relocate be avoided. The word has a tendency to distract attention from the jurisdiction actually being exercised. … To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of “permission” to a parent to relocate his or her residence may divert attention from the child’s welfare, to the competing needs and demands of the parents in conflict.
[7] (2022) 65 Fam LR 461 at [12].
[8] AMS v AIF (1999) 199 CLR 160 at [188] per Kirby J at [217]–[218] per Hayne J (“AMS v AIF”).
[9] At [188].
A parent is entitled to live where they choose and there is no requirement for a parent to demonstrate a “compelling reason” to live where the parent proposes to live.[10] As the Full Court explained in Adamson & Adamson:[11]
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
[10] U v U (2002) 211 CLR 238 at [82] (“U v U”) citing AMS v AIF.
[11] (2014) FLC 93–622 at [66].
Accordingly, there is no onus on either parent to demonstrate why the relocation should or should not occur. Instead, the inquiry is to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.[12] As far as possible, the relocation is not to be dealt with as a separate or discrete issue, but rather as just one of the proposals for a child’s future living arrangements.[13] The court is required to identify and evaluate each of the proposals advanced by the parties.[14] This requires weighing the evidence and submissions as to how each proposal would hold advantages and disadvantages for a child’s best interests.[15]
[12] Malcolm & Monroe (2011) FLC 93–460 at [83] referring to AMS v AIF at [179] and U v U at [259]–[260].
[13] Taylor & Barker (2007) FLC 93–345 at [54] (“Taylor & Barker”) referring to U v U and Bolitho v Cohen (2005) 33 Fam LR 471.
[14] Morgan & Miles (2007) FLC 93–343 at [80]–[81]; Sayer & Radcliffe and Anor at [48].
[15] A v A: Relocation Approach (2000) FLC 93–035 confirmed in Taylor & Barker.
It is not simply a matter of comparing the mother’s proposal against the status quo and allowing or denying the relocation.[16] The mother’s concession that she will remain living in Suburb C if her application to live in Town B with X is not granted is not determinative and her “fall-back” position should be considered only if her primary proposal is not accepted.[17]
[16] Sayer & Radcliffe and Anor at [48].
[17] Asher & Wilkinson (2020) FLC 93–945 at [100] (“Asher & Wilkinson”) referring to U v U.
Objects and principles
The objects and principles from which the provisions of Part VII are to be applied are set out in section 60B of the Act as follows and I have had regard to them when considering X’s best interests:
(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).
Best interests of children
Section 65D provides the court with power to make such parenting order as it thinks proper, subject to some conditions. Section 60CA makes clear that in deciding whether to make a particular parenting order, the court must regard the best interests of a child as the paramount consideration.
Section 60CC requires that in determining what is in a child’s best interests, the court must consider particular matters which are identified as primary and additional considerations. The objects and principles of Part VII referenced above provide the context in which the considerations in section 60CC are to be examined, weighed and applied in each individual case. Each matter must be considered and assessed in the context of the parties’ proposals.
In making my decision, I have considered all of the relevant sections of the Act. I am not required to specifically address each provision in my reasons and if I have not mentioned a specific provision that does not mean I have not considered it.
PRIMARY CONSIDERATIONS
The primary considerations are set out in section 60CC(2) as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying and balancing those primary considerations, section 60CC(2A) requires greater weight to be given the second consideration, namely the need to protect children from harm. However, a careful evaluation and balancing of all considerations is required.[18]
[18] Blinko & Blinko [2015] FamCAFC 146 at [30].
The benefit to the children of having a meaningful relationship with both parents
In Masson v Parsons,[19] the High Court noted that the focus of the objects of Part VII of the Act is on "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".
[19] (2019) 266 CLR 554 at [8].
In McCall & Clark,[20] the Full Court approved the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright.[21] In that case, her Honour proceeded on the basis a meaningful relationship is one which is “important, significant and valuable to the child” and that this is a qualitative assessment not a strictly quantitative one.
[20] (2009) FLC 93–405 (“McCall & Clark”).
[21] (2007) 37 Fam LR 518 at [26].
It is not in dispute that X currently enjoys and benefits from a meaningful relationship with both of his parents and I am satisfied that will continue to be the case on the proposals of both parties. Whilst X’s relationship with the father may be diminished to some extent by spending less time with him, I am satisfied X will continue to benefit from a relationship with the father that is meaningful to him, even if he moves to Town B and the father remains living in Suburb L. He will do so by spending time with the father on alternate weekends (for three nights at a time), on public holidays which fall on Mondays coinciding with weekends he spends with the father, during school holidays, on special occasions, and for up to a week each term if the father obtains short-stay accommodation nearby to Town B. Importantly, in the context of the mother’s application to move with X to Town B, the Act aspires for a child to benefit from meaningful relationships with both parents, not an optimal relationship.[22]
[22] McCall & Clark at [116] cited with approval in Asher v Wilkinson at [55]; Rochford & Fitzhugh [2019] FamCAFC at [23]; Godfrey & Sanders (2007) 208 FLR 287 at [33]–[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182].
Should the father obtain accommodation within 120 kilometres of Town B, then X can continue to spend time with the father as he does now and maintain the same quality of relationship as he currently enjoys. Whilst the father prefers not to move from Suburb L to live within 120 kilometres of Town B, as explained later in my reasons, I consider it is possible for him to do so.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother alleged the father subjected her to family violence during their relationship. To Dr W she described the father yelling and intimidating her, hitting walls and standing over her. She said that on one occasion he twisted her arm. She alleged he was financially controlling.
To Dr W, the father denied any allegations of family violence. In his trial affidavit, he denied verbally abusing the mother or being financially controlling of her. He did not deny twisting the mother’s arm, but denied her arm was injured and deposed:
This incident was used and exaggerated by [the mother] to tarnish my reputation and give the impression that I’m violent, which I’m not.
Neither party was cross-examined in respect of these allegations and I do not make any findings in relation to them.
When cross-examined about Ms CC’s report, the mother gave evidence of the father engaging in conduct at a school function which she found intimidating. She alleged he swore within her hearing, which was heard by another parent from X’s school, that he made an intimidating facial gesture (frowning) at her and moved to sit proximate to her. When cross-examined, the father denied he swore on this occasion, and gave an explanation as to why he moved seats. I accept the mother’s evidence that she found this interaction stressful but I am not satisfied the father engaged in family violence towards her on this occasion. The mother did not otherwise make allegations of family violence after separation.
Neither party alleges X is at risk of harm from being subjected to, or exposed, to abuse, neglect or family violence. Accordingly, I do not consider it is necessary to make orders to protect X from being subjected from harm.
ADDITIONAL CONSIDERATIONS
I now turn to the additional considerations set out in section 60CC(3) as relevant to determine what is in X’s best interests.
Any views expressed by X and any factors (such as his maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
The mother deposed X has told her he would like to live at the holiday house and spend more time with Mr J’s children. The father deposed X has consistently asked the father if he can spend more time at the father’s home. Both may be true.
To Dr W, X described that he lives in two homes with the mother, with different people living in each home. He also described spending time with the father and Ms K in a house “far away” from his school. He was excited to help care for his baby brother, who was at that time yet to be born.
X was only six at the time of the family report interviews. Dr W reported that he appeared reticent to talk about his parents or home, often remarking he did not remember. He expressed a desire for time arrangements to be the same but Dr W reported he did not present with an understanding of how much time he spent with each parent. X’s lack of maturity was in my view demonstrated by his expression of his biggest wish to Dr W, that his parents would let him play on his iPad as often as he liked.
For all of these reasons, I put little weight on X’s desire expressed to Dr W for his care time arrangements to remain the same. I do however take into account his views as expressed to Dr W, including his perception of living in two homes with the mother and of missing his father when away from him.
The nature of X’s relationships with each of his parents and other significant persons in his life
The mother has been primarily responsible for X’s care, during the parties’ relationship and after separation.
It is not in dispute that X enjoys close and loving relationships with both of his parents, consistently with the observations of Dr W.
X is also fortunate to enjoy relationships with a large number of family members, including the father’s fiancée, Ms K, and his step-father, Mr J. X’s half-brother, M, was only a baby at the time of the hearing, so their relationship is developing. They are six years apart in age. The mother, Mr J and Ms DD gave unchallenged evidence about X’s positive relationship relationships with his step-siblings.
In relation to X’s relationships with M and his step-siblings, Dr W provided the following expert opinion:
The current evaluation suggests that [X]’s time with his father and halfsibling should be prioritised over time with his stepfather and stepsiblings. Thus, it would be recommended that [X] continue to have at least five nights a fortnight with his father with the possibility of adding another night as he approaches secondary school. This, however, could not occur should [X] relocate to [Town B].
Dr W gave evidence that if X sees M only on alternate weekends and holidays, their relationship will be “different” from what it would be if they spent time together more regularly. However, she did not say it would not be a meaningful relationship for X.
X is fortunate to also enjoy relationships with his grandparents and other family members as described earlier in my reasons. The father submits X’s relationships with those family members would be adversely impacted by him moving to Town B. Counsel for the mother submitted the father overstated the impact of X moving to Town B on his relationships with paternal family members. This does appear to be the case given the frequency at which the father described X seeing those family members in his letter sent to the mother in October 2022 and in his parenting questionnaire as detailed earlier in my reasons. I am satisfied both parents value X’s relationships with his extended family members and will continue to support those relationships wherever he lives, in the time available to them.
The mother submitted a move to Town B will allow X to have a more integrated family experience with his step-siblings, including attending the same school and sports lessons as them. I agree this would be a benefit to X but I balance this with all other considerations, including the importance of X spending time with his half-brother M to support their developing relationship.
Each of the parties referred to various friends and children X enjoys relationships with. I am confident the parties will continue to facilitate X enjoying those relationships which are important to him, wherever he lives.
The extent to which X’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to X, to spend time and to communicate with X
Dr W reported both parents had been actively involved in X’s development.
Aside from the mother’s wish to live in Town B with X, the parties have so far been able to make decisions in relation to X by agreement between them. For example, prior to the mother moving to live with Mr J in Suburb V, the parties had agreed to X attending T School.
The father was critical of the mother taking steps to enrol X to attend G School without his consent given they have equal shared parental responsibility. I consider it was reasonable for the mother to secure a place for X in light of her proposal to move with X to Town B. I take into account that she informed the father of her proposal as early as September/October 2022, the father was not prepared to consider any schools for X in the Town B area, and she promptly made an application to the court seeking orders for X’s school enrolment at G School.
The father was also critical of the mother for withholding X from attending orientation days in October 2022 at T School, being the school the parties had earlier enrolled him to attend in 2023. By that point, the mother was living in Suburb V with X. In my view, this meant it was no longer practical for X to attend T School in Suburb Z – T School being 45 to 60 minutes from the mother’s home in Suburb V, a significant distance from the father’s home in Suburb L and no longer a school in between their two homes.
When cross-examined about X’s extra-curricular activities, the mother gave evidence the father has chosen not to be involved in X’s activities mid-week and prefers not to. When cross-examined, the father confirmed that whilst he had previously taken X to sports, he had told the mother that he was not willing to take X to sports and that X should do sports when he is in her care. He explained this was so as not to “sacrifice” some of his time with X during what he described as this “transition period” while the mother is living in Suburb C.
The father also gave evidence in cross-examination that he does not have any involvement in X’s classroom activities. When re-examined, he said this was because the mother had nominated to attend classroom reading and sports activities, these were the only two opportunities available for parent involvement and even if he “[was] inclined” he did not consider it appropriate to join those sessions given her involvement. The father did not adduce evidence he had asked the mother about sharing their involvement in those activities or that he had inquired of other opportunities to be involved with X’s school.
The extent to which X’s parents have fulfilled or failed to fulfil their obligations to maintain X
Neither party adduced evidence of their current income. The father deposed both parties earned “high incomes” during their relationship. The parties’ contributions to X’s financial support are governed by a binding child support agreement. Pursuant to that agreement, the father pays periodic child support for X as assessed by Child Support and the parties share X’s education costs.
The mother has offered that if she and X move to Town B, she will meet X’s school fees at G School and that the parties enter into a termination agreement so that the father pays only child support as assessed. She says this will make more money available to the father to meet the cost of increased rent in a suburb closer to the CBD and therefore closer to Town B. The father was critical of this proposal deposing:
[it] implies that my relationship and time with my son could be exchanged for a dollar value/cost benefit. My time with [X] is invaluable, and no amount of money would make a reduction in our time together acceptable.
I accept the mother’s explanation of the rationale behind her proposal.
The likely effect of a change in X’s circumstances, including the likely effect of a separation from a parent or other significant persons in his life
As explained at paragraph 124 below, X already lives 45 to 60 minutes away from the father’s home in Suburb L by car. A move to Town B would see him living approximately two hours from the father’s home.
X moving to Town B will have the effect of X spending less time with the father during school term periods, unless the father moves closer to Town B. In particular, if the father remains living in Suburb L, X will spend two fewer days per fortnight with the father before and after school. He will also spend less time with Ms K and his half-brother, M. The mother acknowledges this is not ideal.
Dr W gave evidence when cross-examined by counsel for the father that this would impact the type of relationship X has with the father and there would be a different quality to their relationship if the father did not collect him from school and take him to activities. However, I note my observations of the evidence in paragraphs 116 and 117 in relation to the father’s current engagement with X’s school and activities.
The practical difficulty and expense associated with X spending time and communicating with a parent, and whether that difficulty substantially affects X’s right to maintaining personal relations and direct contact with both parents on a regular basis
X living in Suburb C
The mother deposed travel time from the father’s home in Suburb L to C School is approximately 50 minutes depending on traffic, and up to an hour. The father deposed it “has never taken ... more than 50 minutes” and “typical travel time … is less than 45 mins in peak hour.” The father relied on data from Google Maps in support of his evidence about the travel time between Suburb L and C School, recording the morning travel time (leaving his home at 7.45 am) at 45 minutes and the afternoon travel time (leaving C School at 3.20 pm) at 40 minutes, in “heavy traffic, as usual”.[23] When cross-examined, the father acknowledged printed information presented to him from Google Maps reported the travel time departing from Suburb L at 8.00 am that morning (25 October 2023) to Suburb C was 58 minutes, which was consistent with the mother’s evidence of the travel time being up to an hour. On the second day of the hearing (26 October 2023) the father was presented with two further pages of information printed from Google Maps, each showing travel time of 55 minutes departing Suburb L at 7.48 am and 7.54 am that morning.[24] In response, the father maintained the trip regularly takes him between 39 and 45 minutes but was unable to produce a Google Map search supporting that estimate. Having regard to the above evidence, I find the travel time between the father’s home in Suburb L and C School, for X to get to school, is between approximately 45 minutes and one hour (rounded).
[23] Annexure B to his trial affidavit.
[24] Exhibit A-1.
The mother and Mr J each gave evidence it is extremely expensive and not sustainable for them to continue to rent properties in Suburb C and Town B at the current rental cost of $2,400 per week (Suburb C at $900 per week and Town B at $1,500 per week), together with the cost of utilities and outgoings for both properties. They have been using savings to meet these costs. Mr J gave evidence he has expended a significant proportion of his savings doing so, that his savings were finite, and he cannot afford to maintain the current arrangement. He was not challenged in respect of that evidence. The mother gave evidence explaining the high rent paid for the Town B property, namely that a rental had to be organised quickly, to meet Mr J’s obligations under his orders, and there were few suitable properties available at that time. The property they currently rent in Town B is on the market for sale and she and Mr J were looking at alternate, more affordable, rental properties at the time of the final hearing, at a cost of between $900 and $1,000 per week. When cross-examined, the mother also gave evidence about more affordable properties in Suburb C. I accept her evidence that a less expensive property in Suburb C would see a deterioration in the quality of her accommodation there with X. For example, she located an apartment at a cost of $700 per week but it had no heating and she did not want X to live in a property without heating. Even with reduced rental, the mother gave evidence renting two properties is not affordable for her and Mr J. She said it is difficult for them to make any decisions about alternate accommodation pending the outcome of these proceedings and she didn’t know how they would manage if she was unable to live in Town B with X. Nevertheless, she maintained that whatever the outcome, she and Mr J would make it work, as a family.
The father acknowledged he understood Suburb C was likely a temporary position pending resolution of these proceedings. When asked what he was thinking at the time that temporary arrangement was agreed, he replied that he hoped they would stay in Suburb C. He said, “Frankly, I thought we would never get this far in this case and that [the mother] from my perspective, would come to her senses and would come up with an alternative proposition”, namely withdrawing her application to move with X to Town B. In closing submissions, counsel for the father acknowledged the situation was not ideal for the mother and Mr J and is expensive for them. However, counsel submitted many families have two homes, including a holiday house, it had proven to be “do-able” over the last year and will be less financially onerous once they secure alternate, less expensive, accommodation in Town B.
X living in Town B
The parties agree travel time from Suburb L to Town B by car is approximately two hours in regular traffic. However, the mother acknowledged travel time varies significantly depending on the traffic (and therefore the time of day) and if travel is with or against the flow of traffic to and from the city. Mostly, pursuant to her proposals, X will be travelling against commuter traffic to and from the city.
It is agreed this travel time for X means it is not practicable for him to spend time with the father mid-week unless the father is able to obtain accommodation closer to Town B.
The mother submits this difficulty could be addressed by the father moving within 120 kilometres from Town B. For example, she says if the father lived in the Suburb F or Suburb N area, this would require travel for X of approximately one hour and 15 minutes and make it feasible for X to spend time with the father mid-week. The mother was cross-examined about this proposal and in particular, evidence she had previously given in an earlier affidavit[25] that travel of one hour and 15 minutes from Suburb V to T School would be exhausting and not feasible for X. She explained her earlier evidence was given in the context of the volume of travel required for X to and from school each day when in her primary care compared with the less frequent travel required under her proposal for X to spend time with the father from Town B. She also explained that at the time of her earlier evidence, X was then not sleeping well (prior to a surgical procedure) and tired more easily. The mother said he has subsequently been travelling regularly between Suburb L and Suburb C and has managed the travel well. That evidence was not disputed.
[25] Paragraph 40 of the mother’s affidavit filed on 8 November 2022.
The father did not contend the cost of implementing the mother’s proposal was prohibitive.
The capacity of X’s parents and any other significant person to provide for his needs, including his emotional and intellectual needs / attitude to X, and to the responsibility of parenthood demonstrated by each of X’s parents
The considerations in sub-sections 60CC(3)(f)(i) and (3)(i) as they apply to this case overlap and I therefore consider them together.
Dr W reported both parents presented as capable of looking after X’s basic needs and understood his strengths and difficulties.
Mother’s parenting capacity and attitudes
It is submitted by the father that the mother’s proposals prioritise her relationship with Mr J and his relationship with his children over X’s relationship with the father and his baby brother, M. He contends this reflects poorly upon the mother’s capacity to provide for X’s needs and her attitude towards X and the responsibilities of parenthood, including her capacity to promote X’s relationship with him.
Dr W also reported that whilst the mother generally impressed as being child focussed during the family report assessment, she was also of the view the mother appeared to prioritise X’s relationship with Mr J and his children over his relationship with the father. Dr W reported that “the mother’s belief that her relationship with [X] was more important than the father’s appeared to be driving the current conflict.” However, she did not further explain this statement, including to reconcile it with the mother being X’s primary care giver or her own recommendation that X continue to live with the mother.
Dr W identified as a potential risk in this matter:
… difficulties co-parenting and supporting [X]’s relationship with his father, being the most likely issues in the future. This risk is likely to increase if [the mother] moves to [Town B] and prioritises the needs of her new relationship and family unit over [X]’s relationship with his father.
In response to this concern, I find the mother’s capacity to facilitate X’s relationship with the father and her positive attitude towards supporting their relationship is evident from the close and loving relationship X enjoys with the father, the mother’s evidence from the witness box, which I found compelling, and from her proposals which have been developed to maximise the prospect of X spending as much time with the father as practicable.
Consistently with my impression of the mother, when pressed in cross-examination, the father ultimately conceded he thought the mother was genuine when she said she would try to promote X’s relationship with him from Town B and the court could be confident in her doing so.
The father’s counsel was critical of the mother for changing her proposals on a number of occasions during the course of these proceedings. For example, the mother initially proposed X continue to spend five nights with the father if the father lived within 30 kilometres of Town B but by the time of the final hearing had changed the scope of her proposal to 120 kilometres. The mother explained that since her initial proposal was formulated, X is sleeping better (after having his surgery), less tired and has been coping well with the significant travel he is currently undertaking between Suburb L to Suburb C when spending time with the father, and to and from Town B on weekends when in her care. She explained she had taken the family report seriously and worked hard to try and come up with a solution that would enable her to move to Town B with X and still enable X to spend time with the father for five nights per fortnight.
I also note Dr W recommended that if X moved to Town B, he spend time with the father from on alternate weekends until Sunday afternoon. Notwithstanding that recommendation, the mother proposed changeover in Suburb F at 7.30 am on Monday morning to enable X to spend an additional night each alternate weekend with the father.
Refinement of the mother’s proposals and her willingness to consider alternative options was consistent with her evidence that she wanted to come up with solutions that would allow her to relocate to live in Town B with X but see X spend as much time as possible with the father. I accept the following evidence, given by the mother during cross-examination as sincere:
If we are successful… I hope [the father] will consider [moving closer to Town B] ... Because [X] needs his dad. He does. They have a great bond. While the three nights a fortnight, their bond wouldn’t be broken, five nights is better.
Contrary to the father’s submission, I find it positive that the mother continued to refine her proposals after receipt of Dr W’s report and up to the conclusion of the final hearing and that this reflects positively on her attitude towards the responsibilities of parenthood and her capacity to support a meaningful relationship between X and the father from Town B.
X’s school attendance
The father complained X had a significant number of absences from C School during 2023 which he attributed to the mother travelling with X to and from Town B. The mother gave evidence X had only been absent occasionally for full days due to illnesses (gastro and Covid‑19) and had been collected early from school on a number of Fridays to enable X to travel for sports weekends. She gave evidence X’s teacher had approved him leaving school one to two hours early on the weekends their family travelled to Region S, including for X to represent C School for a sports competition in mid-2023. When cross-examined, the mother admitted she may have taken X out of school at 2.01pm one Friday afternoon (early 2023) to travel to Town B. The mother deposed X had been collected early from school on some occasions to attend appointments. He had also had “a few late arrivals” on Monday mornings, ranging from two minutes to half an hour, because of heavy traffic from Town B to Suburb C. The mother explained this is why she often now brings X to Suburb C on Sunday evenings rather than Monday mornings. She described that the travel in the opposite direction, to Town B on Monday mornings is less problematic, being against regular commuter traffic. She explained other late attendances (of a few minutes) arose from X not logging his attendance electronically immediately upon his arrival at school. I accept those explanations. The father gave evidence in cross-examination that he had spoken with X’s teacher about his absences from school and that his teacher was not concerned about it. Yet he remained critical of the mother, giving evidence it was raised as an example of the mother being “more interested in doing what she wants rather than what is in the best interest of our child.” In relation to X’s school attendance, I do not have any concerns about the mother’s capacity to meet X’s educational needs after hearing both parties’ evidence under cross-examination.
Father’s parenting capacity and attitudes
Notwithstanding the father’s position about the prospect of him moving closer to Town B, I note the following:
(a)The father and Ms K are renting in Suburb L, so have flexibility in their accommodation;
(b)I am not satisfied the support available to the father and Ms K in Suburb L will not be available to them if they move closer to Melbourne – for example, Suburb F or Suburb N as proposed by the mother, being a drive of approximately 40 minutes from Suburb L;
(c)Each of the father’s parents and his step-mother have driver’s licences and all have cars. Whilst the father gave evidence they are in their 70s, he conceded his mother was 68, his father 71 and his step-father 72 and they are each fit and well enough to care for X;
(d)When cross-examined in respect of his evidence it “would not be feasible” for his mother to drive an hour each way several times a week to care for M, he said only that his mother would “prefer not to”;
(e)The father’s father regularly drives to City D to watch sports matches;
(f)The father and Ms K plan to engage M in paid childcare, at least two days per week, but no firm plans have yet been made. When cross-examined, the father gave evidence he could book a permanent spot for M if he chose to, geography does not pose a problem in respect of paid child care which could be organised in any location, and getting paid “childcare is quite easy”;
(g)Ms K confirmed she has not yet discussed dates to return to work but anticipates she will return to work sometime after early 2024. She has been looking at commercial child care arrangements for M, has applied for family day care, and is waiting to hear back from providers to discuss dates. Whilst she expressed reservations about the father’s statement that paid childcare in any location “is quite easy”, she did not rule it out as an alternative for M;
(h)Ms K works in the CBD, and anticipates returning to work sometime in early to mid‑2024. She lived in Suburb R before moving to live with the father. Living in a suburb close to the CBD would place her closer to her place of employment;
(i)The father did not adduce evidence of his financial position or submit that he and Ms K could not afford accommodation closer to Town B than Suburb L, including a suburb close to the CBD; and
(j)The father has previously enjoyed flexibility in his employment. In relation to his current employment, he deposed:
[The mother] does not know the requirements of my current position. She has no knowledge to be able to assert that I have the ability and freedom to move closer to [Town B].
However, he did not adduce any evidence about the requirements of his employment or flexibility (or lack of flexibility) in his work that would prevent him from being able to move closer to Town B as proposed by the mother. He did not provide a copy of his employment contract, an affidavit or even a letter from his employer.
I accept the evidence of the father and Ms K that they cannot move to Town B due to their employment and it is their preference to remain living in Suburb L, close to the support offered by the father’s family and their friends. However, I am not persuaded they cannot move within 120 kilometres of Town B as proposed by the mother.
Mr J applying to vary his parenting orders
Counsel for the father contended one option is for the mother to live permanently with Mr J and X in Suburb C and for Mr J to seek to vary his orders, to provide for his children to spend time with him there.
I cannot speculate if the mother of Mr J’s children would consent to such a variation or if the court would entertain an application to vary Mr J’s orders, made very recently in September 2022. Further court proceedings would inevitably have a significant financial and emotional toll on all involved, including likely the mother and in that case with a flow-on effect on X, with no guarantee of success.
PARENTAL RESPONSIBILITY
Section 61DA requires the court when making a parenting order in relation to a child, to 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.
That 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 either 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 family violence. I do not find the presumption rebutted on this basis. The presumption may also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAC sets out the effect of a parenting order that provides for shared parental responsibility. In particular section 65DAC(3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue.
The parties join in seeking an order for equal shared parental responsibility, as recommended by Dr W in the family report and I find it is in X’s best interests for such an order to be made. Save for those matters related to the mother’s application to live in Town B with X (that is, where X will live and which school he will attend if he lives in Town B), the parties have been able to reach agreement on major long-term decisions for X. I consider it is likely that with these proceedings behind them, they will continue to be able to do so and that this is in X’s best interests.
X’S CARE ARRANGEMENTS
Given an order is to be made for the parties to have equal shared parental responsibility for X, section 65DAA(1) requires the court to then consider certain matters, including whether it is in X’s best interests and reasonably practicable for him to spend equal time with each parent or, if not, then substantial and significant time with each parent.
The Full Court in Taylor v Barker[34] confirmed this approach is required in a relocation case. In particular:
… the options of the child spending “equal time” or “substantial and significant time” with each parent must be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.
[34] At [83].
In addition to considering whether a particular proposal is in a child’s best interests, the court is required to consider if proposals for equal time or substantial and significant time are reasonably practicable.[35]
[35] Taylor & Barker at [81]–[83]; MRR v GR (2010) 240 CLR 461 at [13] (“MRR v GR”).
As was said by the High Court in MRR v GR:[36]
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 (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of the order… 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…
[36] MRR v GR per French CJ, Gummow, Kayne, Kiefel and Bell JJ at [13].
And at [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 s 61DA(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.
Neither party seeks an order that X spend equal time with the parties. The father seeks X spend substantial and significant time with him, for six nights each fortnight during school term periods. Accordingly, I am required by section 65DAA to consider if it would be in X’s best interests and reasonably practicable for him to live with the mother and spend substantial and significant time with the father.
Section 65DAA(3) provides that 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.
X’s current care arrangements meet these requirements, providing him with the benefits of spending time with the father mid-week and on weekends, during school holidays and on special occasions. The father has had the opportunity to be engaged with X at school by collecting him from school on three occasions each fortnight and delivering him to school on three occasions each fortnight. The father’s proposal for X to live in Suburb C and to spend six nights with him each fortnight also meets these requirements.
Whilst the mother’s proposal would see a reduction in X’s time with the father of two nights per fortnight mid-week, it does still meet the requirements for substantial and significant time as considered by their Honours Ainslie-Wallace and Ryan JJ in Ulster & Viney.[37] X would continue to spend time with the father mid-week during school terms (albeit reduced time), including on Friday afternoons, on Mondays that are public holidays (when they coincide with weekends X spends with the father), and for one week each term if the father obtains temporary accommodation in the City D area. X will also continue to spend time with the father on weekends, school holidays and for special occasions. The father will also continue have involvement in X’s daily routine, noting 65DAA(3) does not limit the question of involvement in daily routine to school weeks.[38]
Consideration of parties’ proposals
[37] Ulster & Viney (2016) FLC 93–722 at [84]–[91] referring to Eddington and Eddington (No 2) (2007) FLC 93–349.
[38] Ulster & Viney (2016) FLC 93–722 per Ainslie-Wallace and Ryan JJ at [91] and Strickland J agreeing at [4].
X living in Town B
By the conclusion of the final hearing, the parties were largely in agreement as to the terms of orders that would be made if orders are made providing for X to live in Town B with the mother. Those orders would see X live in Town B and spend time with father each alternate weekend from Friday afternoon until Monday morning. Changeover would occur at Hungry Jacks in Suburb F at 5.00 pm on Friday and 7.30 am on Monday. On Friday afternoons, the mother would drive X to Suburb F after school on alternate Fridays (she deposed this trip takes approximately 1 hour and 15 minutes) and the father would drive him from there to Suburb L (a further drive of approximately 45 minutes).
The mother provided printed information from Google Maps to support her estimates of travel time for X.[39] On Monday mornings, X will need to get up early to be driven by the father, leaving Suburb L at approximately 6.45 am to get to Suburb F by 7.30 am for changeover (a drive of approximately 45 minutes). The trip to Town B will then take approximately one hour and 15 minutes, against traffic, enabling X to be at school by 8.50 am. The mother gave evidence X is an early riser, who usually goes to sleep by 8.00 pm and wakes by 6.00 am, and she does not expect this travel on Monday mornings will be onerous for him. Even so, this trip would only be required once a fortnight. The father gave evidence X would need to wake up at 5.15 am at the latest, to leave Suburb L by 6.00 am. However, he did not give evidence why X would need to wake so early and his timeframes do not accord with the estimated travel times provided by the parties, so I accept the mother’s estimated timetable.
[39] Annexure D to her affidavit in reply filed on 18 October 2023.
The mother acknowledged X will travel approximately two hours on Friday afternoons and Monday mornings on alternate weekends to spend time with the father, but pointed out there will be less travel for him overall as, if he attends school in Town B, his school will be close to home and he will no longer be commuting regularly from Suburb L to school in Suburb C.
If the father moves within 120 kilometres of Town B (with a travel time of approximately one hour and 15 minutes from Town B), then the parties agree X will resume spending time with the father for five nights per fortnight, with changeover to take place mid-way between their homes. If this occurs, the mother proposes X spend one night with the father each week mid‑week, and the father proposes X spend two consecutive nights with him mid-week in the weeks X does not spend time with him on weekends.
If the father lives within 120 kilometres from Town B, such as in Suburb N or Suburb F, the mother submits the driving time for X will be similar to the time he currently spends in the car, when travelling between Suburb L and Suburb C. In doing so she relies on the upper estimate of travel of one hour from Suburb L to Suburb C (where I have found that trip takes approximately between 45 and 60 minutes for X to get to school in Suburb C) and the travel time from Suburb F to Town B being approximately one hour and 15 minutes.
The advantages of X living with the mother in Town B include:
(a)The mother and Mr J can maintain a single family home in Town B. This means:
(i)The mother can live with her husband and have his support on a day-to-day basis;
(ii)The mother will have the support of Mr J’s brother and sister-in-law who also live in Town B along with friends she has in Town B. The mother, Mr J and Ms DD gave evidence of the benefits enjoyed by her (and X) of those relationships, including X’s relationships with their children; and
(iii)They will be relieved from the significant financial burden of funding two homes,
with corresponding benefits, flowing on to X;
(b)The prospect of the mother’s future happiness is enhanced, with a corresponding flow on effect to X;
(c)X will have two homes (one with each of his parents), rather than three homes as he currently does, providing him with greater stability and less disruption;
(d)If X also attends school in Town B, he will have school friends who live nearby to the home where he lives with the mother mid-week and on alternate weekends; and
(e)Depending on the school he attends, he may also attend the same school as his step-siblings.
Those advantages are to be weighed against the disadvantages of X living in Town B, including:
(a)Most importantly, it would be not practicable for X to continue spending time mid‑week with the father, Ms K and M, unless they obtain accommodation closer to Town B;
(b)X may also spend less time with his paternal relatives. However, there was no firm evidence he spends regular time with those relatives before and after school mid-week and even if that were the case, I am satisfied X’s relationships with those relatives can be maintained on alternate weekends, during school holidays and on special occasions;
(c)It would be more difficult for the father to participate in Xs’ regular school events and to be a part of his school community. However, aside from playing in the playground before and after school with X on occasions he takes him to and from school rather than Ms K, the father did not give evidence in his trial affidavit of interacting with X’s school. The mother volunteered in cross-examination that he attended an assembly at which X received an award and at a school event. The father acknowledged he has not engaged in classroom or other activities as a parent volunteer during X’s first year of school;
(d)It would be more difficult for the father to attend X’s extra-curricular activities. However, the father does not currently attend X’s extra-curricular activities and this year expressed a preference not to;
(e)X will be required to change schools, after spending his first year of school at Suburb C School. Whilst the father advocated against X changing schools, his own application up until the final hearing was for X to move to L School. When cross-examined, Dr W was not concerned about X changing schools given he has not experienced multiple changes in school; and
(f)X will be required to travel approximately two hours to and from school on Friday afternoon and early Monday morning once a fortnight. If the father moves within 120 kilometres from Town B, then X will travel up to approximately one hour and 15 minutes each way to spend time with the father, extending the travel he currently undertakes by up to approximately 15 to 30 minutes each way.
X living in Suburb C
The father proposes X live in Suburb C and spend time with him during school terms, for six nights each fortnight, as follows:
(a)In week one, from the conclusion of school on Thursday (or 10.00 am if a non-school day) until the commencement of school on the following Monday (of 5.00 pm on Monday if a non-school day); and
(b)In week two, from the conclusion of school on Wednesday (or 10.00 am if a non-school day) until the commencement of school on Friday (or 5.00 pm on Friday if a non-school day).
X continuing to live in Suburb C as proposed by the father, would have the following advantages for X:
(a)X could continue to spend regular mid-week time (and potentially more mid-week time) with the father, during school term periods;
(b)The father would have the opportunity to be involved in X’s daily routine on school days and to interact with his school and school community on days he takes him to and from school;
(c)X would have the opportunity to spend more regular time with his half-brother, M, allowing their relationship to develop;
(d)X would have the opportunity to spend time with his paternal relatives more regularly, if the father facilitated that during the time X spends with him mid-week;
(e)X would continue to attend at C School where he has now spent his first year at school and is progressing well; and
(f)X can more easily maintain his existing friendships in Suburb C and Suburb L.
These advantages are to be balanced with the following disadvantages:
(a)The mother will need to maintain two homes with Mr J – one in Suburb C for X to live with her during the week and one in Town B for Mr J’s children to spend time with him pursuant to the Mr J orders.
(b)X will live across three homes:
(i)One in Suburb C with the mother and Mr J during the week when he is not spending time with the father;
(ii)One in Town B, with the mother, Mr J and his children on alternate weekends and during school holidays. This is the location the mother now considers to be her home; and
(iii)One with the father and his family in Suburb L.
(c)X will need to have belongings in each of his three homes or transport his belongings between each of his homes multiple times a week;
(d)X will attend school in Suburb C and he will not have school friends living nearby to either of the homes in which he lives on weekends;
(e)Each of the mother and Mr J gave evidence they cannot afford to continue to meet the cost of two homes. If they are required to do so, securing lower cost accommodation, this will have a flow on effect to X, impacting the standard of accommodation in which he lives with the mother and the funds available to the mother to provide for X and the lifestyle she can offer for him as his primary carer;
(f)Aside from friends from the C School community and Mr J when he stays in Suburb C with them, the mother and X do not have family or supports in Suburb C;
(g)X is required to undertake lengthy travel to and from the father’s home in Suburb L to attend school in Suburb C – approximately 45 to 60 minutes, six times a fortnight if he continues to spend five nights with the father per fortnight or eight times per fortnight if he spends six nights with the father per fortnight as proposed by the father; and
(h)The mother’s unhappiness and any negative impact on her wellbeing of being required to live in Suburb C is likely to have an adverse impact on X given she is his primary carer.
Determination
Relevantly to this case, the reasonable practicability of a proposal includes consideration of the mother’s accommodation.[40] Having regard to the unchallenged evidence of the mother and Mr J that it is not sustainable for them to meet the cost of maintaining two homes indefinitely (one in Suburb C and one in Town B), I am not satisfied the father’s proposal for the mother to continue living in Suburb C with X and to spend five or six nights with him each fortnight is reasonably practicable.
[40] MRR v GR at [15]–[16].
Even if that were not the case, balancing the advantages and disadvantages to X of the parties’ proposals as summarised above, I consider it is in his best interests to live with the mother in Town B and to spend alternate weekends with the father if the father remains living in Suburb L or five nights per fortnight with the father if the father moves within 120 kilometres of Town B.
In doing so, I put most weight on:
(a)The nature of X’s relationship with the mother as his primary care giver;
(b)The nature of X’s relationship with the father, which I am confident is sufficiently strong to support a meaningful relationship being maintained if X lives in Town B, even if the father does not move closer to Town B to enable X to continue spending time with him mid-week;
(c)The impracticability of the mother and Mr J maintaining a home in each of Suburb C and Town B;
(d)The benefit to X of living between two homes rather than three homes, including Dr W’s evidence at the final hearing that it would “most certainly” be better for X to have two homes rather than three;
(e)The impact of the mother’s current living arrangements on her wellbeing and the flow on effect on X; and
(f)The positive attitude and commitment demonstrated by the mother in her evidence and proposals, to supporting X’s relationship with the father from Town B,
balanced against:
(g)The negative impact on X of spending less regular time with the father and M in particular, although I find it is possible for the father to overcome that by moving within 120 kilometres from Town B as proposed by the mother.
I have considered the expert opinion of Dr W expressed in the family report that the “potential implications to the relationship between [X] and his father of moving to [Town B] presented as greater than the potential advantages.” In arriving at a different conclusion to Dr W, I note whether or not a parent should relocate with a child is an issue for the court and “is not the province of opinions arising from expertise and experience arising from qualifications as a psychologist.”[41] A trial judge is not bound by the recommendations of an expert such as Dr W, or to accept or reject the whole, or any part of the evidence of such an expert.[42] In rejecting this aspect of Dr W’s assessment, I note the deficiencies in her report identified earlier in my reasons, that Dr W did not have the benefit of the parties’ trial proposals, trial affidavits or seeing them cross-examined at the time of preparing her family report, and that when this information was put to Dr W in cross-examination some of her opinions changed, including that it would be better for X to have two homes rather than three homes.
[41] Murphy J in Searson & Searson (2017) FLC 93–788 referring by way of example to what was said in Simmons and Anor & Kingsley (2014) FLC 93–581 and the numerous authorities cited in that decision in respect of the parameters for, and use of, family reports (see [40] and from [42]–[44] and [46]).
[42] U v U per Gummow and Callinan JJ at [83] with Gleeson CJ, McHugh and Hayne JJ agreeing.
I acknowledge the nature of X’s relationship with the father will be impacted by my decision if the father continues to live in Suburb L. However, I am confident X will maintain a meaningful relationship with the father even if he spends time with the father only on alternate weekends. Likewise in respect of his relationship with Ms K, M and his extended paternal family.
As agreed by the parties, the orders I make will provide the opportunity for X to spend mid‑week time with the father, for up to a week each term if the father obtains temporary accommodation in the City D area, or on a more regular basis if he obtains accommodation within 120 kilometres of Town B.
I will also make orders providing for X to spend regular mid-week time with the father if he is living within 120 kilometres of Town B, to provide for that eventuality in case the father changes his position about moving. The mother proposed that if the father moves within 120 kilometres of Town B, X spend mid-week time with the father overnight on Tuesday each week. She considered this would spread out the travel required to be undertaken by X and the father, if the father is living close to Melbourne. The father proposed that if he obtains accommodation within 120 kilometres of Town B, X spend mid-week time with him for two consecutive nights in the week he does not spend weekend time him. When I asked her, the mother said she was not opposed to X spending two consecutive nights with the father in alternate weeks as the father proposed, if that was his preference.
I consider the father’s proposal to be preferable, for the following reasons:
(a)Requiring the father to obtain accommodation rather than to move within 120 kilometres of Town B, enables X to spend mid-week time with the father even if the father obtains a holiday home or temporary long-term accommodation within 120 kilometres of Town B. As pointed out by counsel for the father, this is consistent with the wording used in Mr J’s orders;
(b)X spending two consecutive nights with the father provides fewer changeovers and less “to and fro” between households for X; and
(c)It is also likely to be more convenient for the father given it is his proposal and therefore more likely to be implemented.
I have taken into account that the father obtaining holiday accommodation within proximity to Town B has the disadvantages to X of moving between different homes, being a scenario I considered undesirable in respect of the mother maintaining a second residence in Suburb C. However, I see a distinction between this occurring for X to spend time with the father mid-week, compared with X living with the mother as his primary carer in Suburb C each week.
I will also make the order agreed by the parties that if the father obtains temporary, short-stay accommodation in the greater City D area (such as an hotel or holiday rental), X can spend time with the father for up to a week each term, coinciding with and including his regular weekend time with the father. This will benefit X by allowing the father to share in his routine on school days and interact with his school and local community.
I do not consider it is in X’s best interests for his time with the father to increase from five nights per fortnight to six nights per fortnight, even if he lives within 120 kilometres of Town B, primarily for the following reasons:
(a)The father’s attitude towards the mother is not in my view conducive to supporting the cooperative co-parenting relationship required to support a more shared parenting arrangement for X;
(b)The father did not adduce evidence he had undertaken the psychological therapy recommended by Dr W, including to work on strategies to address his mistrust of the mother to promote healthy co-parenting;
(c)If the father lives a significant distance from Town B (say, 120 kilometres), spending another night with the father mid-week will add to the travel to be undertaken by X to and from school; and
(d)Dr W recommended X continue spending five nights with the father.
Dr W suggested consideration be given to “the possibility of adding another night as he approaches secondary school.” It is in my view premature to assess now if such a change will be in X’s best interests at that time, taking into account the above matters, that X is aged only six and about to start grade one, his living arrangements will soon change pursuant to the orders I will make and the parties’ circumstances may also yet change.
X’S SCHOOL ATTENDANCE IN TOWN B
Notwithstanding my determination for the parties to have equal shared parental responsibility for X, I intend to make an order in relation to his school enrolment and school attendance in Town B. I will do so to provide certainty for X as the commencement of the school year is imminent and to avoid further conflict and the potential for further litigation between the parties in respect of that issue.
The mother proposes X attend G School. In the minute of orders tendered on his behalf, the father sought X attend at L School from the commencement of Term 1 in 2024. However, at the final hearing, he said if the mother’s application was not granted and she did not relocate to Town B, then he proposed X continue attending C School.
The applicable legal principles for schooling disputes were discussed by Austin J in in Bilz & Breugelman,[43] as follows:
Schooling disputes are not resolved by application of a “blanket presumption” or preference for the views held by the residential parent (Re G at [29], [45], [65]). The Court is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child’s best interests (Re G at [66]-[68]).
That is probably self-evident, but other more generalised observations were made by the Full Court. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]). Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re G at [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]-[63]). While the views of the child are relevant to the inquiry, as s 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).
[43] [2013] FamCA 578 at [81]–[82].
In making a decision for X to attend at G School as proposed by the mother, I have had regard to:
(a)The impracticability of X continuing to attend at C School if he lives in Town B, being a distance of approximately 10 kilometres;
(b)The father’s evidence that:
(i)He has not visited G School, notwithstanding the mother informed him of the school’s open day;
(ii)He has not attended to view any other schools in the City D area;
(iii)He rang G School in October 2022 only to enquire if X had been enrolled with the school;
(iv)He has not otherwise made enquiries with G School or with other schools in Town B;
(v)He has refused to discuss with the mother, anything to do with any school in the City D area. He gave evidence this is because he didn’t think it was a “plausible solution” and that the issue would “blow over” “when sanity prevailed”;
(vi)He has not put up any alternative proposals for X to attend school in City D or Town B explaining his view that it “has not been relevant” as he considered the matter of X’s schooling as secondary to the issue of whether X moves to Town B;
(vii)It has not been a priority for him from a “time management” point of view, to look into schooling options in that area notwithstanding the mother first raised her proposal for X to attend G School in September 2022; and
(viii)He does not currently have any involvement in X’s classroom activities;
(c)The mother’s evidence that:
(i)Mr J’s children attend G School. His eldest child attends one campus and his younger two children attend another campus. This puts the mother in a good position to assess the school. X will have the benefit of his step-siblings attending the same school (two at the same campus as him) and this also provides practical advantages to the mother, making it easier to get X to and from school;
(ii)She first conveyed her proposal for X to attend G School to the father in September 2022;
(iii)G School is approximately two kilometres from the mother’s home in Town B, meaning X can walk or ride his bike to and from school;
(iv)A number of children attending G School live nearby in the same estate as the home currently rented by the mother and Mr J. The mother and Mr J will continue to live in proximity to the school and therefore many of X’s school friends even if they obtain alternate accommodation in Town B;
(v)G School has small class sizes and is well resourced;
(vi)X has been offered a place to commence at G School in 2024;
(vii)She will meet X’s school fees at G School notwithstanding the binding child support agreement between the parties requiring them to contribute equally to school fees. The fees begin at $6,524 for year 1 and increase to $17,230 in year 12;
(viii)G School offers longer school holiday periods than government schools, which will enable X to spend more holiday time with the father; and
(ix)The mother’s evidence of her involvement in X’s schooling as described in paragraph 37, which I find is likely to continue;
(d)Dr W’s oral evidence that she did not consider a change of school to be problematic for X;
(e)The absence of a proposal from the father to attend to changeovers to and from X’s school, if X lives in Town B; and
(f)By the close of the final hearing, the father did not have an alternate proposal for X to attend a school in Town B, save for him to attend a non-religious school in Town B.
I have taken into account the father’s evidence that he is opposed to X attending a religious school and his opinion that G School is “a highly Christian school whose values conflict with mine and those with which I wish to raise [X].” However, I also have regard to the following evidence:
(a)The father had previously proposed X attend T School or Y School, both of which incorporate educational experiences and values from the Christian faith;
(b)The parties had previously agreed to X attending T School;
(c)The emails between the parties tendered by the father,[44] in which he wrote to the mother in early 2020, when discussing Y School and T School:
My preference is for a secular school but I’m not ruling anything out at this stage. It’s difficult to determine the level of religiosity of either school without visiting them and discussing it in person. You know my stance on religion so it will certainly sway my feelings but won’t necessarily be decisive.
(d)In asserting G School is a “highly Christian school” the father referred to extracts from the school’s website and annual report. However, he did not put complete copies of those materials in evidence;
(e)He gave evidence he had not attended to view G School and had not spoken with the school’s staff save to enquire about X’s enrolment. Accordingly, I do not consider he is in a position to assess the “religiosity” of T School; and
(f)The mother gave evidence she attended a non-denominational private school which was based on Christian values but is not herself religious. This suggests to me she will provide X with a balanced perspective of his religious education at school.
[44] Exhibit R-1.
I will make an order that X attend G School on the basis the mother meets the fees for X’s attendance at that school. If she does not meet his fees, the parties will need to agree on another school for X, exercising their equal shared parental responsibility.
The parties joined in requesting a notation to any final orders recording their agreement that if X attends G School, the mother will be entirely responsible for all fees at that school and they will enter into an agreement terminating their binding child support agreement. The parties cannot be compelled to enter into an agreement terminating their binding child support agreement or requiring them to enter into a further binding child support agreement. I do not consider it necessary to record their intention as a notation to the final parenting orders where it is recorded on the transcript and in these reasons.
CHANGEOVER
I will make an order providing for changeover to take place to and from X’s school on alternate weekends if the father elects to do so, even if the father continues to live in Suburb L. This will enable him to interact with X’s school teachers, friends and the parents of other students if he would like to do so and is able to accommodate that with his work, even if only occasionally. I raised this possibility with the parties and the mother said she would support such an order being made. If the father does not elect to do so, changeover will take place at Suburb F, or if the father moves closer to Town B, then another mid-point between the parties’ homes as the parties have agreed.
In relation to mid-week time if the father obtains accommodation within 120 kilometres of Town B, I will provide for changeover to and from school (from the conclusion of school on Wednesday until the commencement of school on Friday) as proposed by the father in the joint minute.
OTHER ORDERS
I find the other parenting orders agreed by the parties reflect X’s best interests, being orders his parents agree upon.
CONCLUSION
For all of the above reasons, I am satisfied the orders set out at the commencement of these reasons are in X’s best interests and make orders in those terms.
I certify that the preceding two hundred and thirty-two (232) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 25 January 2024
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