HUTCHINS & GRAY

[2015] FCCA 1540

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUTCHINS & GRAY [2015] FCCA 1540

Catchwords:
FAMILY LAW – Parenting – child 4 years – agreed Child live with Mother – history of regular time with Father – Mother seeks to relocate with Child to (omitted), (omitted) – Mother’s partner working in (omitted) – relocation permitted.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 65DAC, 68B, 114(3)

Adamson & Adamson [2014] FamCAFC 232
AMS v AIF; AIF v AMS (1999) FLC 92-852
Ember & Assadi [2013] FamCAFC 107
H v E (1999) FLC 92-845
Sampson & Hartnett (No.10) [2007] FamCA 1365
Sayer & Radcliffe & Anor [2012] FamCAFC 209
Taylor & Barker [2007]FamCA 1246
Zander & Zander [2014] FamCAFC 173

Applicant: MS HUTCHINS

Respondent: MR GRAY

File Number: SYC 5589 of 2014

Judgment of: Judge Sexton

Hearing dates: 9, 10 and 11 March 2015

Date of Last Submission: 11 March 2015

Delivered at: Sydney

Delivered on: 5 June 2015

REPRESENTATION

Counsel for the Applicant: Ms Clifford

Solicitors for the Applicant: Clayhills Solicitors

Counsel for the Respondent: Mr Flaherty

Solicitors for the Respondent: Aston Legal

THE COURT ORDERS BY CONSENT THAT:

1. All previous parenting orders be discharged from the date of the Mother’s relocation in accordance with Order (16) including the Watchlist Order made on 7 November 2014.

2. The parties have equal shared parental responsibility for the Child X born on (omitted) 2011 including but not limited to:

   (a)Choice of his school;

   (b)His religious instruction and upbringing;

   (c)His medical treatment;

   (d)Choice of his sporting and other activities.

3. X live with the Mother.

4. Notwithstanding any other Order, X spend time with the Mother on Christmas Day from 10.00a.m until 6.00p.m. and X spend time with the Father from 10.00a.m on Christmas Eve until 10.00a.m on Christmas Day.

5. Notwithstanding any other Order, X spend the weekend of Father’s Day with the Father from 6.00p.m. Friday until 6.00p.m Sunday.

6. In the event Mother’s Day falls on a weekend that the Father would spend time with X pursuant to these Orders, that weekend time is suspended.

7. Each party immediately notify the other of any medical emergency, serious injury or serious illness suffered by X.

8. If either party buys medication that is prescribed for X, he/she will supply that medication and instructions for its administration to the other parent when X goes into the other parent’s care.

9. The party with X in his/her care will be responsible for ensuring X attends all extra-curricular and social activities that occur during that period.

10. The Mother ensure X speaks to the Father on Skype or by telephone on three occasions each week, such days to be nominated by the Father, between 6.30p.m. and 7.00p.m.

11. Each party ensure X is able to speak to the other party by telephone at any time requested by X.

12. The parties encourage and foster X’s relationship with the other party and X’s immediate and extended family and neither party denigrate the other or members of the other’s family to X.

13. The parties keep each other informed of their residence, mobile and home telephone numbers and notify the other of any change to those details within 24 hours.

14. Each party is restrained from travelling with X outside the Commonwealth of Australia unless prior written consent is provided by the other party not less than 21 days prior to the departure. The party travelling with X must also provide an itinerary and in particular include details of where X can be contacted during this time.

15. The Court notes that the parties agree there should be no order about X’s birthday.

THE COURT FURTHER ORDERS THAT:

1. The Mother be permitted to relocate with X to (omitted) or an alternate location in the (omitted).

2. X spend time with the Father as follows:

   (a)Until the commencement of the 2017 school year:

   (i)Each alternate weekend from 10.30 a.m. until 4.30 p.m. on Saturday (or Sunday if agreed), (or such other period agreed for no more than 6 hours) such time to be spent within 25km of X’s residence, commencing on the first weekend after the date of relocation;

   (ii)Each alternate weekend from 3.00p.m Saturday until 5.30 p.m. Sunday commencing on the second weekend after the date of relocation;

   (iii)For a period of up to 4 consecutive nights in the short school holiday periods;

   (iv)For three periods of up to 4 consecutive nights in the Christmas School holiday period;

   (b)From the commencement of the 2017 school year:

   (i)Each alternate weekend from 5.00p.m. Friday until 5.00p.m. Sunday commencing on the second weekend of each school term;

   (ii)On any other weekend on either Saturday or Sunday for a period of up to 6 hours at times agreed between the parties, such time to be spent within 25 km of X’s residence, when the Father will give the Mother at least 7 days’ notice of his intention to spend that time with X;

   (iii)For half the short school holiday periods, being the first half in 2017 and all years ending in an odd number, and the second half in 2018 and all  years ending in an even number, and for the purpose of this order, time will commence at 3 p.m on the first Saturday and conclude at 5.30 p.m. on the second Saturday or time will commence at midday on the second Saturday and conclude at 5.30 p.m. on the last Saturday of the holidays;

   (iv)For half the Christmas school holiday period, at times to be agreed, but on condition that X spends no longer than 8 consecutive days with the Father before the 2018/19 Christmas school holiday period;

   (v)At other times by agreement between the parties.   

3. Unless another venue is agreed, changeovers occur at McDonald's (omitted) when X is spending time with the Father in Sydney, and at the McDonalds nominated by the Mother, located closest to X’s residence when time is spent near X’s home.

4. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5589 of 2014

MS HUTCHINS

Applicant

And

MR GRAY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case concerns parenting arrangements for the parties’ only Child X, aged 4 years. The Father opposes the Mother’s proposal to relocate with X to the (omitted), 2-3 hours from the Father’s home in Sydney. 

2. At separation, X was 18 months of age. The Mother, with X, left the former matrimonial home at (omitted), where the parties had been living with the Father’s mother in her home. The Father has remained living at the (omitted) home with his mother. 

3. The Mother says the parties did not discuss parenting arrangements at the time of separation, but transitioned without difficulty to an informal arrangement where X would spend time with the Father when he was available and the Mother was working.  By 2013, X was spending the majority of weekends with the Father from Saturday afternoon until Sunday afternoon.  The parties were on good terms and spent time in each other’s homes at changeovers. 

4. The Mother initiated these proceedings by application filed on 8 September 2014 when the Father opposed her wish to relocate with X to the (omitted). The Mother wants to live with her partner, who was transferred to (omitted) by his employer in September 2014. The Father is strongly opposed to the move. He believes the proposed relocation would cause a major disruption to X’s usual care routine and adversely impact on their relationship. 

5. The parties do not agree on X’s care history. The Mother strongly contests the Father’s claim that X was in an almost shared care arrangement until late 2014. While considerable time was spent on this issue at hearing, it was ultimately agreed that X spent a regular 24 hour period with the Father on most weekends as well as a 7-8 day block period each year, with additional days from time to time.  Although, as at 7 November 2014,[1] the parties agreed that X was spending time with the Father each alternate weekend.

   [1] In Child Dispute Conference Memorandum of Ms P – 7 November 2014

6. The Mother says that the Father prioritises his other commitments over spending time with X.  The Father is studying, working casually and heavily involved in (hobby omitted). The Mother says she has done her best to work around the Father’s busy schedule to ensure X spends regular time with him.  She believes that relocation to the (omitted) would result in a marginal, if any, change to X’s time with the Father, and “cause minimal emotional confusion and distress for X.”[2]

   [2] At paragraph 70 of Exhibit 3

Background facts

1. The parties commenced living together in 2009 (the Father says (omitted) and the Mother says (omitted)) and separated in April (the Father’s version) or July 2012 (the Mother’s version).  X was born on (omitted) 2011.  The parties initially lived together in (omitted), but from (omitted) 2010 until their separation they lived with the Father’s mother at (omitted).    

2. The Mother is 44 years of age. She is a (occupation omitted) employed by the (employer omitted) at (omitted) in Sydney. She works full time, from 8.00a.m to 4.00p.m. five days a week (Sunday to Thursday), and lives with X in rented accommodation at (omitted). The Mother has two children from a previous relationship, Y aged 22 and Z aged 16 years. She describes an acrimonious break up with her ex-husband when she says her children blamed her for the separation, the father alienated them from her and she was advised it was not in their interests for her to pursue formal contact orders.  Her ex-husband has been convicted of murder. Both children have contact with her now, though not regularly. 

3. The Mother commenced a relationship with Mr K, aged 52 years, in mid-2013. They have no children together but Mr K has two adult children from his former marriage. Mr K is a (occupation omitted) employed by the (employer omitted). Until (omitted) 2014, he worked at (employer omitted) but, as a result of an employment issue, he was transferred to the (employer omitted). The Mother is living in rental accommodation at (omitted) while Mr K is now renting accommodation in (omitted).  The (employer omitted) has offered the Mother a compassionate transfer to (employer omitted) .

4. The Father is 31 years of age. He is in his third year of a (omitted) degree and says he intends to do Honours and then a Masters. He works casually as a (occupation omitted) with (employer omitted) in conjunction with the (employer omitted).  He competes in (hobby omitted) and trains at a gym several hours a day. He has recently applied to (employer omitted) for a job as an (occupation omitted) (which may be in (omitted)) but would like to apply to the (employer omitted) at the end of 2015.  He was sacked as a (occupation omitted) as a result, he says, of an “administrative mistake.”[3] While he has been in a relationship with Ms E since late 2012, he tells Ms L that he intends to live with his mother indefinitely.    

   [3] At paragraph 42 of Exhibit 3

5. X attends pre-school at (omitted) 3 days a week. He usually spends Wednesday with his maternal grandmother who lives in (omitted).  The Mother says it is usual for her to take him to her mother’s home on Tuesday evening and stay for dinner before leaving X for the night and returning home. Apart from spending weekend time with the Father and paternal grandmother, the Mother says X is rarely minded by anyone else.

Current arrangements

1. Interim orders were made by this Court in November 2014 providing for X to live with the Mother and to spend time with the Father each weekend from 6.00p.m. Saturday until 6.00p.m. Sunday, with changeovers at McDonald's (omitted). Each party has complied with those Orders and, according to the Father, the arrangements have “gone well.” [4]

   [4] Father in cross-examination

Orders sought by Mother

1. The Mother seeks orders[5] providing for X to live with her, and for her to be permitted to relocate with X to the “ (omitted) region of NSW”.  She seeks orders providing for X to spend time with the Father until he commences his second year at school, each alternate weekend from 4.30p.m. Saturday until 5.30 p.m. Sunday (with no restriction on location) and on each alternate Saturday or Sunday from 10.30a.m until 4.30p.m, the time to be spent within a 25 km radius of the changeover location. The Mother seeks an order for X to spend up to 4 nights in each short NSW school holiday period and three periods of up to 4 nights in the Christmas school holiday period.  Once X commences school, the Mother seeks to increase the alternate weekend time from 5.00p.m. Friday until 5.30p.m. Sunday, for half the short school holidays and for two periods of one week each in the Christmas school holidays. If not permitted to relocate, the Mother seeks the same arrangements. The Mother seeks an order for changeover to occur at McDonalds Restaurant in (omitted) when X spends holiday time and alternate weekend time with the Father, and a McDonalds Restaurant close to X’s home for the alternate weekend daytime. The Mother seeks orders for X to spend time with each party on special days. 

   [5] Exhibit 1

2. The Mother said she would remain living in Sydney with X if not permitted to relocate with him to the (omitted). She would remain working at (employer omitted).

Orders sought by Father

1. The Father seeks a restraint on the Mother relocating with X outside the Sydney Metropolitan area without his consent. In his Response filed 3 October 2014, he seeks orders providing for the same restraint, for X to live with him and to spend alternate weekends with the Mother. He was seeking those same orders at the time of the expert assessment.  At hearing the Father no longer sought an order for X to live with him. He sought orders providing for X to live with the Mother and to spend time with him each Wednesday afternoon after school until 7.00p.m. and from 3.00p.m. Saturday to 5.00p.m. Sunday each weekend, and from the time X starts school, for half of each school holiday period. He seeks time on special days. He seeks orders providing for the Mother to undertake all transport to and from an agreed venue or from his residence.  He seeks an order for equal shared parental responsibility.[6] If the Court permits the Mother to relocate with X, the Father seeks the same orders, but excluding Wednesday afternoons. 

   [6] Exhibit 2

2. The Father told Ms L there was no possibility of him moving closer to the (omitted) if X was living there. 

Injunction sought by Father

1. Each counsel submits that even though the Mother will remain X’s primary carer, whether the relocation occurs or not, section 68B[7]  and section 65D together give the Court the power to restrain the Mother from relocating. Each counsel submits that the question is whether the power should be exercised in the circumstances of this case, and agree the authorities suggest that the power would be exercised rarely. 

   [7] Ember & Assadi [2013] FamCAFC 107 at paragraph 55

2. Section 68B(1) provides:

   If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child…

3. I do not agree with counsel that the authorities are definitive on this issue.

4. In the 1999 High Court decision of AMS v AIF[8], Kirby J said:

   [8] (1999) FLC 92-852

   Parents enjoy as much freedom as is compatible with their obligations with regard to the child.

5. In the 1999 decision of H v E[9] (Ellis, Kay and Steele JJ), the Full Court said[10]:

   ... the power to place a restraint upon movement of the child appears to be found in the court's power to make a parenting order under s 65D or grant an injunction under s 68B. Whilst an order restraining a parent from changing the child's place of residence may in reality act as a severe impediment upon the freedom of movement of that parent, neither section is likely to be a source of power to directly restrain the freedom of movement of that parent. When dealing with parents who have been previously married to each other, it may be that such a power exists by operation of s 114 of the Family Law Act 1975. It is unnecessary in this case to determine these issues, but it is important that judicial officers and practitioners bear in mind the possible limitations of power when determining the form of orders that are appropriate in any particular case. 

   [9] H v E (1999) FLC 92-845

   [10] At p 85,887

6. In 2007, the majority of the Full Court in Sampson and Hartnett (No.10) said[11]:

   The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement.  What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances … where for whatever reason, there is not a well-established relationship between the child and the other parent?  Will the primary parent be punished?  The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times.  Enforcement is discretionary and may be rare in the situation exemplified.  On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.

   [11] [2007] FamCA 1365 at paragraph 59

7. The majority in Sampson and Hartnett concluded that there is power under section 114(3) to enjoin a party from relocating, provided that the injunction is no more than is necessary to secure the best interests of the child.[12] The Full Court said that “the proper exercise of such a power is likely to be rare…”[13]   

   [12] Ibid at paragraph 58

   [13] Ibid at paragraph58

8. I note here that section 114(3) does not apply in this case given the parties were never married.[14]

   [14] Section 4 of the Family Law Act 1975

9. In the 2013 decision of Ember & Assadi[15] (Finn, Strickland & Ainslie-Wallace JJ) the parties were not married. The trial judge made an order that “the mother ensures that the children’s permanent residence is in Sydney or Newcastle, New South Wales.” One of the grounds of appeal was that the Court does not have the power to make an order requiring a party to relocate, as opposed to an order restraining a party from moving. The Full Court said that[16]:

   [15] [2013] FamCAFC 107

   [16] Ibid at paragraph 55

   The latter order is clearly able to be made at least under

   
   

   s 68B of the Act, and perhaps under other sections but, to repeat, it is submitted that there is no section which permits the Court to make the former order.  However, even if there was, and it has been suggested that s 65D and even

   
   

   s 68B of the Act do provide that power, it is argued that they “should be read down to conform to The Australian Constitution in relation to issues of freedom of movement between States”.

   Having considered what was said by the Court in Sampson & Hartnett, the Full Court went on to say[17]:

   We consider that these pronouncements are as definitive as they need to be to be relied on as identifying the source of power, although we consider that it may well be more appropriate to invoke s 65D and s 68B than s 114(3).  In any event, what is overlooked in this appeal is that there was no order made by the Federal Magistrate specifically requiring the mother to relocate.  The relevant orders are Orders 2, 3 and 4, and plainly they were made in the context of where the children should live, not the parents.  They require that the mother ensure the children relocate to New South Wales within eight weeks, and that the children live with the mother.  Understandably these orders would not be workable if the mother did not move, but it is readily apparent that they do not direct her to move.  In that format at least we are satisfied that the Court has the power under s 65D and s 68B of the Act to make those orders.

   [17] Ibid at paragraph 60

1. In the 2014 decision of Zander[18] (per Bryant CJ, Ainslie-Wallace and Ryan JJ), the parties were married. The Trial Judge had restrained the Father from leaving Australia. The Court confirmed the decision in Sampson & Hartnett that an order requiring a parent to live in a certain place is not a parenting order, s.68B cannot restrict the movement of a parent, and the Court has discretion under s.114(3) to restrain the movement of a parent. The Full Court said that[19]:

   …his Honour did not refer to the principal authority on this issue, Sampson & Hartnett (No 10) (2007) FLC 93-350 in which the Full Court said that the power to make an injunction that directly affects a parent and the parent’s right of movement is not found in s 68B but rather in s 114(3).…

   …the source of power to make the injunction restraining the father from leaving Australia was s 114(3) not s 68B.[20]

   [18] [2014] FamCAFC 173

   [19] At paragraph 132

   [20] At paragraph 135

2. In the 2014 decision of Adamson[21], the Full Court (per Ainslie-Wallace, Murphy and Kent JJ) said[22]:

   No ground of appeal asserts error in the trial judge’s finding that the Court has the power to make an order requiring the mother to move. Nor was it contended below that the Court lacked that power. His Honour found specifically that the power “is found in s 65D and 68B of the Act” (Reasons, [39]).  Authority supports his Honour’s conclusion (Sampson & Hartnett (No. 10) (2007) FLC 93-350 (“Sampson”); Ember & Assadi [2013] FamCAFC 107) although it might be noted that his Honour appears to adopt the reasoning in the latter case which holds, contrary to what is asserted in the former, that the court’s power lies not in s 114 of the Act but in the sections to which his Honour referred. Again, no issue arises on this appeal in relation to any such distinction.

   It can thus be seen that having the power to make a coercive order is one thing, but the circumstances which must exist to justify its legitimate exercise is quite another….

   ..The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. [U V U [82] CITING AMS V AIF].

   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.

   [21] [2014] FamCAFC 232

   [22] At paragraphs 35, 41, 65, 66

3. I find the Full Court inconsistent on the question of whether the Court has power, in a de facto matter, (as opposed to when parties were married)  to compel a party to live in a particular location.  However, in light of the reasons that follow and my ultimate decision, I find it unnecessary to take this analysis any further. 

Consent orders

1. During the course of the hearing, the parties agreed to orders for equal shared parental responsibility and for X to live with the Mother. They agreed on how much time X would spend with each party on special days, to telephone time, and to issues relating to information sharing and overseas travel. [23]

   [23] Exhibit 8

Issues

1. The Court is asked to determine whether or not it is in X’s best interests for the Mother to be restrained from relocating with him to the (omitted), and how much time X should spend with the Father. In other words, given that the Mother will remain X’s primary carer whether she relocates or not, the Court is asked to determine whether the Mother should be compelled to remain living in the Sydney Metropolitan area. 

Expert recommendations

1. Ms L, Regulation 7 Family Consultant, prepared a report for the Court.[24] As already noted, at the time of her assessments and report preparation, the Father was seeking an order for X to live with him as well as for the Mother to be restrained from relocating with X outside Sydney.

   [24] Exhibit 8

2. Ms L supports the Mother’s case. In her opinion, X’s relationship with the Father will not diminish if he relocates to the (omitted). She recommends that the parties equally share parental responsibility, that X live with the Mother and be permitted to relocate with X to the (omitted)/(omitted) region of N.S.W.  She recommends that if relocation is permitted, X spend time with the Father on alternate weekends from midday Saturday until 4.00p.m. Sunday with changeover at (omitted) McDonald's “or similar”; on alternate Saturdays or Sundays from 11.00a.m. to 3.00p.m. with the time to occur in the (omitted), (omitted) or (omitted) area “by negotiation between the parties”; until X has completed one year of school, for one period of up to 4 nights in each short school holiday period and for 3 periods of up to 4 nights in the Christmas school holidays, and thereafter for half each school holiday period but for no longer than one consecutive week at a time; and other times by agreement. Ms L recommends that if X is not permitted to relocate, he spend time with the Father on each alternate weekend from Friday after school/pre-school until 5.00p.m. Sunday and on each Wednesday afternoon from 3.00p.m until 7.00p.m, and spend time with the Father during school holidays for the same periods she recommended if he were permitted to relocate.       

Legal principles

1. Relocation cases are not a separate category within the Act to be determined by their own principles and rules.  Each is a case under Part VII of the Family Law Act 1975 relating to the best interests of the child.  As the Full Court said in Sayer & Radcliffe & Anor[25]:

   It is now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders…the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.

   [25] Sayer & Radcliffe & Anor [2012] FamCAFC 209 at paragraphs 47 & 48

2. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration. To determine the child’s best interests it must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination. It must ensure that any order it makes is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.

3. The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give greater weight to the second primary consideration.[26] The primary considerations are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard.

   [26] Section 60CC (2A), Family Law Act 1975 (Cth)

4. The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:

   ·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

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

5. The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). 

The Mother’s proposal

1. The Mother says that if permitted to relocate, she and X will live with Mr K in (omitted), initially in rented accommodation. They have applied for a rental property in (omitted), north of (omitted), approximately 30-35 minutes from their workplace at (omitted) . They hope to be in a financial position to purchase a home of their own in the (omitted) area within one or two years. They have pre-approval for a loan from the (omitted) Bank to purchase a home to a value of $320,000 but have used substantial savings to pay the legal costs of these proceedings.  Their home would have a backyard which would mean X could have a dog, a trampoline, a cubby house, a place to ride a bike and play with his friends.  She said their mortgage repayments will be considerably less than their current combined rentals, and her salary will not change in (omitted). They would not find a suitable property for $320,000 in Sydney.

2. The Mother has found a place for X in a long day care centre in (omitted) 3 days a week for the remainder of 2015, and has spoken to (omitted) School, in (omitted) (a suburb of (omitted)), a school of 60 students which the Mother believes will suit X’s needs when he commences school in 2016.  It has a before and after school care facility.  She will continue X’s speech therapy and has researched and found a Speech Pathologist in (omitted) known as “(omitted)”. The area offers X a range of extracurricular activities including swimming and soccer.  She would like X to attend (omitted) School, an outer suburb of (omitted), in secondary school.   

3. The Mother and Mr K will be employed as (occupation omitted) at (employer omitted)  and will organise their rosters to minimise the time X requires out of school care. (employer omitted) is a large facility with many shift options and a family friendly policy. The Mother has been told management will endeavour to accommodate her family commitments. Mr K says he has considerable shift flexibility at (employer omitted).  His roster is set 3 days in advance. He can put in special requests which are invariably granted.  He says he and the Mother can arrange their rosters around X.  He said “I want X to get the best deal.”  Mr K believes that X’s schooling and stability is a major factor. He wants stability for the family which is not achievable in Sydney because they cannot afford to buy a house here.  He says his mother will help them purchase a home. 

4. Exhibit 6 is a google map which estimates the time from (omitted) to (omitted) to be 2 hours 30 minutes and from (omitted) to (omitted) 2 hours 36 minutes and (omitted) to (omitted) approximately 30 minutes. Mr K says he finds the trip from (omitted)/(omitted) to Sydney quicker than (omitted) to Sydney because of more time on the freeway.  The Mother has proposed particular times for changeover to accommodate her shift work. She would like to collect X after her shift on a Sunday afternoon. The Mother, with Mr K’s assistance, will facilitate X having regular skype/telephone time with the Father, as well as regular time with him. She told Ms L that if permitted to relocate, she would do all she could to ensure X spent no less time with his Father than he does presently. Mr K said “I would drive X each weekend if I have to, including driving to (omitted).” 

5. The Mother says life is hard in Sydney with Mr K living in (omitted), even though her parents live here and have been a great support to her and X. She and Mr K were sharing accommodation and expenses until his move to (omitted) and have retained a joint account from which they meet their respective rental payments and household bills.  She does not have friends with children X’s age.  She cannot afford to buy a property, and has had 3 moves in 3 years in rented properties.  If she is unable to relocate, she will move again as she will not be able to afford to live in her current accommodation.  She says that the relocation offers her the chance to live with Mr K and offers a work transfer which would allow her and Mr K to arrange their rosters to minimise X’s time in out of school care. The Mother says that her parents have retired and are happy to travel to spend time with X, to whom they are devoted.  Mr K has made friends with young children in the area they would live. The Mother told Ms L that she and Mr K wanted to move out of Sydney for financial reasons but also for “a more simple life.”[27]

   [27] At paragraph 20 of Exhibit 3

6. The Mother said that as soon as she was aware that Mr K was being transferred to (omitted), she discussed the relocation with the Father and with the paternal grandparents. She acknowledged that the paternal grandmother was disappointed.  The Mother reassured them that she would be flexible/accommodating and she did not think X’s time with them would change.  The Mother did not expect the Father to oppose the move and require her to initiate Court proceedings. 

Mr K’s move to (omitted)

1. The Father argued that the need for the Mother to relocate with X would have been avoided if Mr K had accepted a transfer to a metropolitan facility. He alleges the Mother and Mr K have misrepresented the facts in relation to the (omitted) transfer.  He said Mr K could have moved to any (employer omitted) in the Sydney metropolitan area but sought a country posting because he and the Mother wanted to get away from Sydney, (and therefore from him).[28]  The Father sought to establish that Mr K could return to employment in Sydney if he so chose, and the Court should force Mr K’s hand by prohibiting the Mother from relocating.

   [28] At paragraph 37 of Exhibit 3

2. The Father’s counsel therefore cross examined Mr S of the (employer omitted) about the circumstances of Mr K’s transfer from (omitted) to (omitted).Mr S confirmed Mr K’s evidence that Mr K had a verbal altercation with a senior officer at the (employer omitted) which resulted in an investigation and a “remedial” rather than a “disciplinary” decision dated 29 August 2014.[29] It was decided that Mr K would be transferred from (employer omitted) to another (omitted), chosen in consultation with Mr K.  Mr K agreed to transfer to the (omitted) which was then actioned.

   [29] At Annexure A to affidavit of Mr K sworn on 19 February 2015

3. Mr D from the (employer omitted), and industrial advocate, was also cross examined. Mr D confirmed that Mr K had used inappropriate language with a senior officer. Mr D intervened on behalf of the union to negotiate an appropriate resolution. After Mr D’s meeting with Mr S, the decision was made to transfer Mr K from (omitted) to another facility and to require him to undertake a conflict resolution course within 6 months.  Mr D had no role in the choice of (employer omitted), but said there were limited vacancies in other facilities.

4. I find Mr K’s version of what led to his transfer consistent with the version he gave Ms L and with the explanation given by these witnesses.  Mr K said that (employer omitted) was the only regional facility that would take both him and the Mother, and was not too distant from Sydney. (omitted) and (omitted) were possible options but would not allow him and the Mother to work at the same facility. While he was keen to have a simpler life away from Sydney, he was not given the option of transferring to a facility in Sydney, and even if he had been offered (omitted) work (which might have been available though was not offered), he could not have accepted the loss of substantial entitlements, including penalty rates such a move would involve. He said while (employer omitted) itself “is a bit rough”, the area around (omitted), and in particular the small town of (omitted), “is a really nice place”.[30] Mr K said it would not be easy for him to transfer back to Sydney if the Mother’s relocation was not permitted. He would have to resign from (employer omitted) because it could take years to succeed in a transfer to a Sydney facility. At age 52 years, he believes he would struggle to find work.

   [30] At paragraph 56 of Exhibit 3

5. Mr K deposes to having a solid work record at the (employer omitted), having been elected peer support officer for 8 consecutive years and receiving a commendation for his actions during an assault between (omitted).

6. I am satisfied that Mr K had no choice but to accept a transfer to one of the regional centres offered. I am satisfied that he and the Mother believed it best for X if they could work in the same facility so they could coordinate their rosters to work around X’s schedule.   I am satisfied Mr K believed (employer omitted) was a realistic option given its distance from Sydney, the affordability of housing, and given X’s need to spend regular time with his Father.

THE PRIMARY CONSIDERATIONS     

The benefit to the child of having a meaningful relationship with both of the Child’s parents

1. X will continue to enjoy the benefit of a meaningful relationship with the Mother because on each party’s proposal, he will be living with her as he has always done. The critical question in this case is whether the Mother’s relocation to the (omitted) will have such an adverse effect on X’s relationship with his Father that X will not continue to benefit from a meaningful relationship with him.  Ms L said her primary focus during the assessment was X’s attachment to his Father, and whether X’s move would impact on that attachment relationship. 

2. The Father says that X “means to world to me” and he would do anything to promote his welfare.  The Father said that if X moves to the (omitted), he will travel to spend time with him, whether daytime or overnight. The Mother told Ms L that X “loves his father dearly and very much enjoys spending time with him and she would never do anything to disrupt this relationship.”[31]

   [31] At paragraph 22 of Exhibit 3

3. X presented to Ms L as emotionally self-contained and not particularly affectionate, so “the usual markers of an affectionate relationship were not present” when she observed X with the Father.[32]  Ms L observed that X did not make eye contact with the Father, nor seek proximity to him during the assessment. When his Father tried to engage him in conversation, X went “noticeably quiet and would not answer his father, despite Mr Gray’s best efforts.”[33] However, Ms L observed X become more animated with his Father as the session went on and when X farewelled the Father, he gave him a kiss and cuddle, but without “overt enthusiasm.”[34] Ms L said, nevertheless, that X appeared to have a solid attachment to his Father.  She said the Father “presented as warm and responsive to X and X was happy to spend time with him.”[35] She said if X sees his Father each week as she proposes, he will maintain and develop his attachment relationship to the Father, without the need for overnight time each week and without the need for time to always occur in Sydney.  If the Father could spend even more time with him than she has recommended, that would be positive.  Ms L said the relationship would benefit if the Father could spend time with X in his residential area and his community. 

   [32] Ibid at paragraph 80

   [33] Ibid at paragraph 64

   [34] Ibid at paragraph 66

   [35] Ibid at paragraph 80

1. If X is living with the Mother in the (omitted), on each party’s proposal, he will spend time with the Father every week for the next 18 months, and thereafter for a full weekend fortnightly, as well as time in X’s own community whenever the Father is willing or able to travel there. He would have significant block time in school holidays.  On the Father’s proposal, X would see the Father during the week for a few hours one afternoon, but would never have a full weekend with him as he would on the Mother’s proposal. The Father says he would definitely travel to the (omitted) to see X if he was living there. The difference in the amount of time X would spend with the Father is not significant on each proposal. 

2. I am satisfied that X will continue to benefit from a meaningful relationship with both his parents whether or not the Mother is permitted to relocate. This is a factor to which I give substantial weight. 

The need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. “Neglect” is not defined in the Family Law Act and therefore must be given its ordinary meaning.

2. “Abuse” is defined in section 4 of the Family Law Act 1975 as:

   (a)     an assault, including a sexual assault, of the child; or

   (b)     a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)     serious neglect of the child.

3. Section 4AB(3)  says that “For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”

4. Section 4AB(4) outlines examples of situations that may constitute a child being exposed to family violence which include (but are not limited to) the child:

   (a)    overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b)     seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d)     cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e)     being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.”

5. Family violence is defined at section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family….or causes the family member to be fearful.”

6. In November 2014, both parties told Family Consultant Ms P that there was no family violence in their relationship.[36]

   [36] Child Dispute Memorandum dated 7 November 2014

7. However, the Father makes a number of serious allegations about the Mother’s conduct, and Mr K’s conduct, which, if proved, would constitute family violence and may suggest neglect. He says that the Mother is an alcoholic consuming a bottle of wine 4 or 5 nights a week. He says his allegation is based on observations of the Mother during their relationship, and that he has raised her excessive alcohol consumption with her “many times”. He deposes to the Mother responding to his cash payments of child support with “this will get some nice bottles of Sav Blanc.”[37] He also says she attempted suicide in her first marriage.[38] He alleges that the Mother physically abuses X.  He saw the Mother smack X on the legs before they separated at least once a week. X told him recently the Mother had hit him causing a bruise on his leg. He said X did not want to go back to the Mother on one occasion. Each couple of months, X reports his Mother smacking him. He does not accept the Mother’s explanation for one of the bruises that X slipped in the shower. He got X to pull up his pyjamas and took a photograph of that bruise.

   [37] At paragraph 43 of Father’s affidavit sworn on 1 October 2014

   [38] Ibid at paragraph 38

8. The Father deposes to X often expressing reluctance to return to his Mother’s care at the end of contact occasions.  X cries “I don’t want to go back to that place.”  He deposes to X displaying bruises on his body on a number of occasions after spending time with the Mother[39] and claims the Mother has admitted she inflicts these bruises as a means of discipline.[40] He annexes a photograph of a large bruise on X.[41] He also contends that the Mother’s partner Mr K is a poor role model for X. He says he is aggressive, was prohibited from returning to (employer omitted) “due to his verbal outbursts and aggressive behaviour”, is an alcoholic, and was reported for “sexual harassment” at work.  

   [39] Ibid at paragraph 46

   [40] Ibid at paragraph 47

   [41] At annexure B of Father’s affidavit sworn on 1 October 2014

9. The Mother says she has had regular drug and alcohol screens in her employment which never revealed any problem with the level of her alcohol consumption. She drinks socially, consuming no more than 2-3 glasses of wine on any occasion. Mr K told Ms L that he would, at most, have a couple of social beers on the weekend.  In relation to discipline, the Mother said at most she would tap X on the hand to give him a shock when he had done something unsafe. She said her usual method is to send X to his room for a brief period, but he is generally compliant and requires very little discipline.

10. I agree with Ms L that it is quite possible X is upset at times at changeover because “each transition is a loss of an attachment figure” and evokes a grief reaction.  X must make an emotional adjustment each time he moves.

11. Ms L speculates that the Father’s allegations about the Mother and Mr K are “spurious” and “vexatiously designed to shore up the Father’s position as the preferred parent.”[42] I agree with Ms L’s opinion, because I find the Father’s allegations are not supported by his conduct: he helped the Mother move out alone with X when X was only a baby; he made no complaint to the (omitted) about risk to X, yet works for an agency connected to the (omitted) so would be aware of its role; he adduces no evidence from the paternal grandmother who must have observed the Mother drinking to excess given the length of time the Mother lived with her;  and in approximately 50 changeovers a year he never observed the Mother intoxicated. It is also noteworthy that the Father did not initiate proceedings to remove X from the Mother’s care or to vary the informal arrangements in place, until the Mother proposed relocating. If the Father had been concerned about Mr K being an alcoholic and abusing X, or if the Father had been concerned that X was being neglected because of the Mother’s alcohol consumption, or was being deliberately injured by the Mother, he provides no credible explanation as to why he stood by and took no steps to protect X. 

    [42] At paragraph 72 of Exhibit 3

12. In answer to questions in cross-examination about how he could let the Mother move out with X, then 18 months old, if she was an alcoholic, the Father said “she said she would stop doing it.” He agreed that he was supporting an order that X live with the Mother and was not seeking any orders about alcohol or physical discipline. He agreed the (employer omitted) requires the Mother to undergo random checks for alcohol use, and that she has never returned a positive result. He has never checked whether X has been bruised at daycare.  The Mother says the Father has never raised these allegations with her. 

13. I am satisfied that the Father made these allegations in an attempt to prevent the Mother removing X from Sydney.  I am not satisfied that X has been subjected to family violence, abuse or neglect in the Mother’s care either by the Mother or by Mr K.   

RELEVANT ADDITIONAL CONSIDERATIONS

Any views expressed by the Child and any factors (such as the Child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the Child’s views

1. This is not a relevant factor given X’s age and stage of development.

The nature of the relationship of the Child with each of the Child’s parents and other persons (including any grandparent or other relative of the Child)

1. Both parties acknowledge X’s strong relationships with his maternal and paternal grandparents. He lived in his paternal grandmother’s home for the first 18 months of his life, and has since spent time with her on most weekends with his Father.  X has been cared for regularly by his maternal grandparents on Wednesdays while his Mother has been at work. I accept both parties’ evidence that X is much loved by all his grandparents.

2. According to the Mother, X has a good relationship with Mr K whom he calls “Mr K”. She told Ms L X was “quite upset” when Mr K initially moved to (omitted), feeling he had done something wrong to make Mr K move out.  He needed reassurance that it was just to do with Mr K’s job.[43] X enjoys swimming lessons, and as a family they spend hours at the pool and at the beach. Mr K told Ms L that his relationship with X had developed “in leaps and bounds” over the last 12 months and describes a diverse range of fun activities they share together.  They enjoy trips to the beach, the park and playing computer games.  Ms L did not formally observe X with Mr K, but observed them together in the waiting area during the 4 hours of the assessment. Ms L said that Mr K presented as an amenable and approachable man.  “His manner tended to be ‘straight up’ and his answers were to the point. He remained calm and emotionally stable throughout the interviews”.[44] Mr K says he loves X, and I am satisfied they enjoy a warm and relaxed relationship.

   [43] At paragraph 25 of Exhibit 3

   [44] At paragraph 50 of Exhibit 3

3. I accept the Father’s evidence that X has a good relationship with his partner Ms E and her three children. 

4. I take these findings into account. 

The extent to which each of the Child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the Child; and to spend time with the Child; and to communicate with the Child

1. As already noted, there is no question that the parties have shared X’s care since separation, with the Mother playing a significantly greater role as his primary carer and X spending time with his Father on most weekends and for a block period of nights from time to time.  However, I accept both parties’ evidence that the Father is studying for a degree which involves readings, assignments and examinations, has casual work and is heavily involved in (hobby omitted) in which he trains for several hours a day on most days of the week, and competes regularly on a Friday or Saturday.  While the Father says he chooses his work hours to suit X, I find that the Father has relied on the Mother to work around his schedule when organising X’s time with him.  The Father (and X) have been fortunate to have the strong support of the paternal grandmother who is there for X when the Father is not available.  

2. The Father complains that the Mother has made decisions for X without consulting him, including arranging speech therapy for X.  The Mother on the other hand, says the Father has been content to leave decisions about daycare and X’s schooling to her, has had little contact with X’s daycare, and thought it was unnecessary for X to have speech therapy at all. 

3. The Father does not have a full time job and plans to continue to study to achieve an Honours’ and then a Masters’ degree.  He pays no board to his mother and finds time to train in (hobby omitted) 4-5 mornings a week. The Father is not yet taking full responsibility for himself.  I am satisfied that the Mother has taken the primary role in organising X’s day to day life. She has capably coordinated his care arrangements while managing a full time job as a single mother. She is the parent who ensures his needs are always met. While the Mother has the advantage of the experience of other children and being older than the Father, she has demonstrated significantly greater responsibility and maturity in her parental role than the Father, who I find has had been in a position to prioritise other activities while still enjoying his role as X's Father.  

The extent to which each of the Child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the Child

1. The Mother says that the Father’s contention that he has always paid child support is “simply laughable”. She has not expected any child support given the Father is a part-time student and not employed full time.  With the exception of a contribution to X’s speech therapy costs, she has not asked for child support, although he has made small contributions. Exhibit 4 discloses 6 payments of $100 between 25 August and 31 December 2012. The Mother denies receiving cash payments from the Father as he asserts.  

2. The Father says he gives as much as he can afford, but his liability was assessed at $350-370 a year when he was a full time student. He did advise the Child Support Agency when he started working in March 2014. The Father concedes that the Mother has housed X without financial assistance from him and has paid all his day care fees, while the Father has lived rent free with his Mother and not worked full time since separation. The Father says he has no plans to work full time before 2016. 

3. While I accept that the Mother has carried almost the whole of the responsibility for X’s financial support since separation, given X has been in his care on most weekends and for occasional holidays I do not conclude that the Father has totally failed in his obligation to maintain X.  He adduces evidence of purchasing clothing, toys and gifts and I accept he pays for excursions and activities when X is in his care.  The Father, however, has relied on the Mother to meet the costs of X’s essential needs, and I find it unlikely his reliance on her will change in the foreseeable future.   

4. I give moderate weight to these findings. 

The likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from either of his parents, or any other Child, or other person (including any grandparent or other relative of the Child), with whom he has been living 

1. If X relocates to the (omitted) with the Mother, it will not be practicable for him to spend every Saturday night with the Father and paternal grandmother, the pattern he is used to. Nor will he have the option of spending time with the Father at short notice as he does from time to time now.  Although X would not spend every Wednesday with his maternal grandparents if he relocates, that arrangement could not continue from 2016 when X starts school whatever the outcome. 

2. X has moved residence three times in the last three years, and the Mother says it is likely she will have to move again if not permitted to relocate. X’s circumstances are not presently secure. The Mother relies on her own salary, with minimal contribution from the Father, to house and educate X and provide him with opportunities to participate in activity he enjoys. If X relocates, it is likely that the Mother and Mr K will purchase their own home and X will benefit from a stable home and stable community.  The Mother will be better off financially sharing mortgage payments with Mr K rather than renting two properties, and it appears that X will be required to spend only limited time in care outside school hours if the Mother and Mr K can stagger their work rosters. I accept the Mother’s evidence that X will have more play space around him, and be given the chance to own a pet.  He will have easy access to extra-curricular activities in a large country town. The Mother says her parents will visit regularly as they have now retired. The Mother says she will facilitate X spending time with the Father whenever he comes to the (omitted), will facilitate regular time on weekends, and frequent skype and telephone communication. X would maintain his relationships with extended family because the Father lives with his parents, and there is no reason to think this will change. The Mother says her parents, who are supportive of the move, will travel to the (omitted) to spend time with X and with her.

3. The Mother’s proposal involves considerable travel for X. The Mother told Ms L that X is well used to the trip from Sydney to (omitted) because he has travelled there frequently since Mr K moved to (omitted).  She says he is a “very good and quiet car traveller; he has a DVD player with lots of movies and he quickly settles down to watch this, or if he is tired, he will go to sleep.”[45] However, I agree with the Father that the travel is likely to be tiring for him.

   [45] At paragraph 23 of Exhibit 3

4. I accept the Mother’s evidence that she would be “devastated” if the Court refused her application. She said it is likely her relationship with Mr K would be put under considerable strain and she does not know how they would cope with this.  I agree with her that if she loses her relationship with Mr K, it would be a negative outcome for X. They have managed moving between two homes since September last year, in the knowledge their separation will not be forever. Ms L said:[46]

   The needs and best interests of the child must be separated from the needs and desires of each parent; yet of course a child’s best interests are inextricably linked with the emotional, psychological and practical wellbeing of each of their parents. 

   [46] Ibid at paragraph 77

5. I have regard to the authorities [47] which confirm the relevance of the welfare of a resident parent because of its importance to the welfare of the child. 

   [47] See for example Taylor & Barker [2007]FamCA 1246

6. On the Mother’s proposal, X will see his Father each week until the end of his first year at school, as well as half school holidays and at other times in the (omitted) if the Father is able/willing to travel.  Thereafter X will spend two nights on alternate weekends with the Father in Sydney.  The time proposed is only marginally less than the Father’s proposal that X spend one night every weekend with him and a few hours after school each Wednesday.  The Father emphasises the critical importance of X in his life.  He says he will definitely travel to the (omitted) if X is living there.  Both the Mother and Mr K acknowledge the importance of the Father to X and I accept their evidence that they intend to ensure that X’s relationship with his Father is not diminished by their move.

7. I give my findings under this factor significant weight.  

The practical difficulty and expense of a Child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the Child's right to maintain personal relations and direct contact with both parents on a regular basis

1. As already noted, the parties are currently living in reasonable proximity to each other, approximately 25-30 minutes apart.  If X relocates with the Mother to the (omitted) the parties will be living 2-3 hours apart.  X will spend less time with the Father, but as already noted, not significantly less time.  There will be no impediment to X having regular contact with the Father by skype and telephone.

2. I have already made findings on the likely impact on X of a move to the (omitted).

The capacity of each of the Child’s parents and any other person (including any grandparent or other relative of the Child) to provide for the needs of the Child, including emotional and intellectual needs

1. The Mother deposes to the Father spending little quality time with X during their relationship, choosing to leave X’s care to her.  After separation, the Mother was prepared to leave X with the Father overnight, because she knew his mother would look after X. The Mother says the Father is immature, heavily reliant on his parents with whom he continues to live, focused on his sport and study and not interested in full time work. The Father acknowledges being sacked as a (occupation omitted), resulting (he tells Ms L) from an administrative error, but (he says in his affidavit) from “incompletion of assignments within the required time frame.”[48] He acknowledges being placed on a bond for low range PCA in 2009 which he says was a “one off event”. He tells Ms L he has not had a drink since.  In his affidavit he said he drinks occasionally.  The Mother deposes to the Father being unreliable about pick up and drop off times, and upsetting X, until she proposed a public venue for changeover.  

   [48] At paragraph 50 of Father’s affidavit sworn on 23 February 2015

2. The Father presented to Ms L as “a polite and amenable man with an earnest and at times intense manner.”  Ms L was concerned at his poor level of insight into the impact on X of his proposal (at that time) that X live with him and see his Mother fortnightly for weekends. She said such a change “would be enormously emotionally destabilising for X.”  Ms L assessed the Father as poorly emotionally attuned to X’s needs and having no understanding of what a loss of his primary attachment figure would mean to him. 

3. As earlier noted, the Father makes serious allegations about the Mother’s mental health and parenting capacity and paints an extremely troubling picture of X’s life in the Mother’s care.  He alleges that Mr K is an alcoholic, is “aggressive” and may present a risk to X.  He says that the Mother tried to commit suicide during her previous marriage, that she is an alcoholic and that she physically abuses X.  He says:

   These alcoholic tendencies, in conjunction with her past experiences involving suicidal attempts and ideations, do not create a positive or stable environment for X. 

4. The Father refers to the collapse in the Mother’s relationships with her two older children following the breakdown of her marriage.  In his view, the Mother is exhibiting the “same lack of consideration” for X as she did with her older children, with whom even now, she has only limited contact.[49] 

   [49] At paragraph 48 of Exhibit 3

5. As already noted, I do not find that the evidence supports the Father’s allegations that the Mother abuses and/or neglects X.

6. The Mother presented to Ms L as “an open, friendly and engaging woman”. Ms L said[50]:

   She was forthright in her views but she was able to be reflective and thoughtful about aspects of her proposal and the likely impact of relocation on X and his relationship with his father.

   [50] At paragraph 12 of Exhibit 3

7. The Mother told Ms L that the father of her first two children alienated them from her after the separation, and a Family Report completed during her parenting proceedings at that time, recommended she not pursue seeing her children because of the emotional impact on them.  When their father (her husband) was incarcerated in 2010 for the murder of (omitted), her children chose not to live with her because they did not like Mr Gray and blamed her for their father’s predicament “saying that if she had not left him, he would not have needed to commit murder.”[51] After the parties’ separation, her daughter Y lived with the Mother for over a year but moved out because of antisocial behaviour. The Mother describes Y as happier now that she is living with her boyfriend in (omitted) and says they enjoy regular contact. Her son, Z, 16 years, now lives with his paternal grandparents, and has contact with the Mother from time to time. 

   [51] At paragraph 30 of Exhibit 3

8. I agree with Ms L that the Mother impresses as a capable and caring parent.  I agree with her that the Mother is acutely aware of the Father’s importance to X. The Mother found the Father’s allegations deeply upsetting.  She said he had never raised any of these issues with her in the past, including issues about Mr K. The Mother says she has enjoyed a good relationship with the Father’s mother who she used to speak to regularly until the relocation issue came between them.  The Mother told Ms L that the Father was “desperately clutching at straws to find anything to stop her going”.[52] Mr K denies the Father’s allegations about him.  He drinks very little and discipline of X is not an issue.  He says that the Mother is the one to discipline X though he is an “exceptionally well behaved little boy” and he has only occasionally had to raise his voice with him.  I accept his evidence.

   [52] Ibid at paragraph 28

9. I find the Father showed no insight into how these serious allegations would affect the Mother and had the potential to impact on X.

10. I accept Ms L’s opinion that the Mother’s relationship with Mr K is stabilising and very important to her, and that his support is an important factor in the Mother’s case. 

11. I give substantial weight to these findings.   

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the Child and of either of the Child parents, and any other characteristics of the Child that the court thinks are relevant

1. The Father says the Mother has failed to support X's (country omitted) heritage because X has not been issued with a (country omitted) passport, and, despite being invited, the Mother did not attend the (country omitted) Citizenship Ceremony in (omitted) 2014 when X received his (country omitted) citizenship.  I am not persuaded this evidence supports a finding that the Mother will inhibit X’s engagement with his (country omitted) background. The evidence supports a finding that the Mother in fact supports X’s connection with his (country omitted) heritage by permitting X to participate in the ceremony. I am satisfied the Father and the paternal family will ensure X’s knowledge and involvement in his cultural heritage.

2. X presented to Ms L as emotionally self-contained.  Apart from his need for speech therapy, neither party reports X having any special needs. 

3. I take these findings into account.

The attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child’s parents

1. Prior to the relocation issue arising, according to the Mother the parties had an open relationship and “we discussed everything.” The parties spent unhurried time together at changeovers, often in each other’s homes to have a coffee and a chat.  According to the Father, the Mother did not consult him in relation to important decisions for X, has failed to pass on information, and has made unilateral decisions that he does not approve. For example, he was not consulted before X’s speech therapy treatment started, asked to go therapy sessions but was refused and offered to help with costs.  The Father says “I have been shut out of X’s life”.   

2. I find minimal evidence to support the Father’s assertions. The Mother acknowledges failing to tell the Father about X’s 4 year old immunisations, but says the Father has been happy to leave many important decisions to her, including the choice of his day care and school and has not chosen to engage with X’s day care staff about his progress there or about X starting school.  The Father agrees he has not contacted X’s day care. The text messages in Exhibit 5 disclose positive, polite and constructive communication between the parties about appointments for X, X's Christmas and birthday presents, arrangements for his birthday. I find the communication is child focused and helpful. 

3. The Mother tells Ms L the only thing stopping X spending more time with the Father was his lifestyle.  Ms L said the Father was vague about the extent of his commitments.  The Father told her his hours of work vary, and he could not be specific about the time he spends studying and training.  He reported attending the gym up to 4 hours a day and teaching (hobby omitted).  The Mother deposes to the efforts she has made to support X’s relationship with the Father including:

   a)Choosing rental premises half way between the Father’s home and her workplace on separation;

   b)Inviting the Father to orientation days at X’s day care centre;

   c)Arranging for X to spend Saturday overnight and Sunday with the Father, and if the Father was not available, with his mother;

   d)Arranging for X to spend Wednesdays with the Father if he was unavailable on a Sunday;

   e)Being flexible about X’s time with the Father when he has been studying or doing assignments;

   f)Giving the Father first option to care for X when she has been unavailable;

   g)Encouraging X to enjoy his time with the Father;

   h)Spending time with the Father chatting about X, including inviting him into her home, and spending time in the Father’s home at changeovers; 

   i)Discussing X’s need for speech therapy with the Father and updating him on progress;

   j)Involving the Father when X required an EEG;

   k)Inviting the Father and his family and girlfriend to Christmas celebrations at X’s day care centre;

   l)Sharing X’s portfolio of work at day care with the Father and his family;

   m)Purchasing copies of X’s day care photos for the Father and his family;

   n)Permitting X to attend the Father’s girlfriend’s twin daughters birthday party and buying presents for them;

   o)Inviting the Father’s mother to lunch;

   p)Encouraging X to speak to the Father and his mother on the phone;

   q)Offering the Father special time on X’s birthday weekend.

4. In cross examination, the Father acknowledged that the parties had an amicable relationship before these proceedings started and that the Mother has facilitated X’s relationship with him as the Mother describes.  I find no evidence to support the Father’s contention that the Mother will not comply with Court orders regarding X’s time with him if she is permitted to relocate.  In fact, the evidence is to the contrary.  It is noteworthy that the Mother did not let her distress about the Father’s serious allegations about her parental capacity impact on X’s time with him.  I agree with Ms L when she says:[53]

   What is not in dispute is that Ms Hutchins has never attempted to prevent Mr Gray from having a relationship with X; indeed, she appears to have gone out of her way to ensure that X spent regular time with his father, even when from a developmental perspective, this may not necessarily have been in X’s best interests.  There is no sense, therefore, that Ms Hutchins is seeking to relocate as a means of marginalising Mr Gray from X’s life.

   [53] At paragraph 71 of Exhibit 3

5. I give substantial weight to these findings.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the Child

1. I am satisfied the parties will comply with Court orders once made, and neither party is likely to initiate further litigation.  The parties have a history of working well together and I am satisfied that in time, they will re-establish a good working relationship. 

Any other fact or circumstance that the court thinks is relevant

1. The Father tells Ms L that (omitted) is a low socio-economic area and he would not want X to grow up there.  There is no evidence on which to make a finding on this issue.  In any event, I agree with Ms L that what is important for X is that he has warm responsive parents who take an active interest in his well-being. 

PARENTAL RESPONSIBILITY

1. Section 65DAC applies whenever a parenting order provides for shared parental responsibility, and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the children. Section 61DA requires the court 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. The evidence in this case supports the application of the presumption and on the basis of the parties’ demonstrated capacity over many years to consult effectively about issues concerning X, I am well satisfied that it is in X’s best interests for an order to be made for equal shared parental responsibility as sought by both parties.

2. In these circumstances, s.65DAA(1) requires the Court to consider whether making orders that the child should spend equal time, or if not equal time, substantial and significant time with each party would be in the best interests of the child and whether such an arrangement is reasonably practicable,[54] having regard to the factors set out in section 65DAA(5). These factors include the distance between the parties’ homes, the parties’ capacity to implement such an arrangement, the parties’ capacity to communicate and resolve any differences between them, the impact such an arrangement would have on the child, and any other matter the Court considers relevant. The requirement of reasonable practicality “requires a practical assessment of whether equal time parenting [or substantial and significant time parenting] is feasible”.[55] 

   [54] Section 65DAA Family Law Act 1975; See also MRR v GR [2010] HCA 4

   [55] MRR v GR [2010] HCA 4

3. If X were living in the (omitted), neither equal time, nor substantial and significant time would be practicable, given the geographical distance between the parties’ homes would be 2-3 hours.  If X were living in Sydney, neither party seeks an order for equal time. The Father seeks an order for time on Wednesday afternoons and overnight from Saturday afternoon to Sunday afternoon. Such an arrangement would mean X spent time with the Father on weekdays and weekend days, but would not allow the Father to be involved in X’s daily routine, nor necessarily in events of significance to X, and to the Father.  I do not therefore find that the Father’s proposal for X’s time with him, if living in Sydney, could be defined as “substantial and significant time” in accordance with s.65DAA(3).

Discussion and Determination

1. X was very young when the parties separated.  However, to both parties’ credit, each has been actively involved in his care. Until the Mother’s relocation was in issue, there was no conflict between the parties, the Father had not questioned the Mother’s parenting capacity, the Father had been supportive of the Mother’s relationship with Mr K and the parties were working well together for X’s benefit.  X was spending regular time with the Father, who was not seeking to change the informal arrangements in place.  

2. When the Mother proposed to relocate, the Father took a very different view. He told the Court expert that X did not like living with the Mother and was at risk of harm in the Mother’s care. He said that the Mother was an “alcoholic” and was physically abusing X. He said that the Mother’s partner was aggressive and a poor role model for X.  He said that if the Mother was permitted to relocate with X, she would not support X spending time with him and his relationship with X would weaken.  As already noted, I am not persuaded the evidence supports the Father’s allegations. And significantly, the Father does not seek an order for X to live with him if the Mother relocates. He supports X remaining in the Mother’s primary care. 

3. Ms L found none of the parent-specific factors in this case which might result in X being worse off following the relocation.   On the other hand, she found parent-specific factors which are likely to result in X being better off (or at least not worse off) following a relocation.  She said[56]:

   …it has been argued that where a relocation offers high functioning and committed parents improved occupational, educational or marital opportunities, children are likely to benefit from their parent’s enhanced wellbeing, particularly if they are also able to maintain a meaningful relationship with the other parent, through a regular contact regime. 

   [56] At paragraph 83 of Exhibit 3

4. If permitted to move to the (omitted), the Mother would have a job, she would join a partner who loves her; they would together create a family life for X, very likely in a home of their own. The Mother’s financial position would improve and she would be supported emotionally. The Mother and Mr K would organise their work rosters to minimise X’s time in care.  I agree with Ms L that these opportunities for the Mother are likely to be positives for X.

5. While X would be living 2-3 hours away from the Father and his grandparents on both sides of his family, he would have regular contact with them all.  His maternal grandparents support the move and intend to travel regularly to visit.  There would be no impediment to the paternal grandparents seeing X at any time. The Mother is committed to X’s relationship with the Father.  The Father would be free to attend X’s sport and other commitments should he wish to do so and X would travel to Sydney regularly to spend time with the Father. It would always be open to the Father to move closer to X’s residence.

6. I agree with Ms L that the success of the relationship between Mr K and the Mother is important to X and I agree with her that the relationship would be put under significant pressure if the Mother were not allowed to relocate. 

7. The factors weighing against relocation include the amount of travel involved for X.  He may see less of his Father, if his Father is unable or unwilling to travel regularly. X’s weekly routine will not be the same as it is now.  While I agree with the Father’s counsel’s submission that X is presently doing well under the current arrangements, I find it unrealistic to assume that nothing will change if the Mother is restrained from relocating. The Mother wants to be with Mr K, she wants to live in the (omitted) region, she wants to improve her financial position, she wants to give X a stable home base in a stable community. The Mother would be denied those opportunities if compelled to remain in Sydney, and in her words would be “devastated”.  Such an outcome would be a negative for X. 

8. While the Father opposes the Mother moving, he offers her no financial assistance. He lives rent free. He does not choose to work full time and plans to do more courses.  He can study one subject towards a degree and spend 4 hours at the gym every day, while the Mother has no choice but to work full time.  This is unlikely to change.

9. I agree with Ms L that the Mother is a capable and loving Mother who has always prioritised X’s needs.  I find that the Mother is acutely aware of the importance of the Father to X and is committed to nurturing X’s relationship with his Father.  While the Father says his life revolves around X, that does not seem to be the case.  He is adamant he would never move closer to the (omitted) region and says his ability to travel to the (omitted) is limited because of his sporting commitments.  It is evident that X has to fit in with the Father’s life, not the other way around, and the Mother relocating to the (omitted) would cause the Father inconvenience. 

10. I find the Mother’s proposal to relocate is well thought through.  She has made arrangements for her own employment; she has carefully considered and researched X’s day care and schooling; she has investigated accommodation options; she has located a speech pathologist for X. She presents a sensible workable plan for X’s time with his Father. She has focussed on the potential negatives of the move and is committed to overcoming any difficulties X might face. 

11. I have carefully weighed the findings I have made.  I have decided it is in X’s best interests for the Mother to be permitted to relocate to the (omitted) with X.  I agree with Ms L that the Mother is likely to take steps to remedy any noticeable weakening of X’s relationship with the Father.  However, I strongly encourage the parties to engage in mediation at Relationships Australia or an alternative agency offering services in this area if any issues of significance cannot be agreed.  

1. As earlier noted, neither party seeks either equal time or significant and substantial time, and given the difficulties of distance, I agree that neither option is practicable in the circumstances of this case or in X’s best interests.  I find that X’s needs are best met by living primarily with his Mother (as consented to by the parties) and spending time with the Father each weekend until the end of his second year of school, as recommended by Ms L and thereafter fortnightly and for half school holidays.  X will travel to Sydney fortnightly, not weekly as the Father would prefer.  The Father will travel fortnightly to the (omitted) for the next 18 months or so to reduce the burden of travel on X, and thereafter will be at liberty to travel at other times with notice to the Mother.

2. In relation to changeover, while the Father says the Mother should be responsible for all the travel to his home, given she claims it will be an easy drive to Sydney, the Father does acknowledge there would be benefit to X of him seeing both his parents involved in the travel and it would give him more time with X.  I have adopted the Mother’s proposal in relation to changeover. 

3. The parties have agreed on arrangements for X to spend time with the Father on special days including Christmas Day, they have agreed on arrangements for overseas travel, for exchange of information and for telephone/skype time. I have made those orders by consent.  I have ordered the removal of X’s name from the Airport Watchlist.

4. I have substantially followed Ms L’s recommendations in relation to school holiday time until X is 8 years of age, but given X has spent periods of up to 8 nights with the Father on occasions, I have decided it is in his interests to spend up to half the Christmas holidays with the Father from when he is 8 years of age.

5. The Father seeks a restraint on the Mother and Mr K drinking to excess, but I find no basis in the evidence for such an order.

6. I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of X.  

I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Associate: 

Date:       5 June 2015