Jardine & Overton

[2021] FCCA 1574

FEDERAL CIRCUIT COURT OF AUSTRALIA

Jardine & Overton [2021] FCCA 1574

File number(s):

SYC 2511 of 2012

Judgment of:

JUDGE BECKHOUSE

Date of judgment:

13 July 2021

Catchwords:

FAMILY LAW – PARENTING – relocation – where the mother seeks to relocate the child to Perth, Western Australia – where the mother has been offered employment in Perth – where the father opposes relocation – where COVID-19 impacts plans – mother’s right to freedom of movement – best interests of child– relocation not permitted.  

Legislation:

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA

Cases cited:

A v A:Relocation Approach (2000) 26 FAM LR 382

AMS & AIF (1999) 24 Fam LR 756

Hardie & Capris [2010] FamCA 1046

Collu & Rinaldo [2010] FamCAFC 53

Morgan & Miles [2007] FamCA 1230

MRR & GR (2010) 263 ALR 368

S & W [2012] FMCAFam 1127

Number of paragraphs:

102

Date of hearing:

9 July 2021

Place:

Sydney

Counsel for the Applicant:

Mr Harper

Solicitor for the Applicant:

Clinch Long Woodbridge Lawyers

Counsel for the Respondent:

Mr Maurice

Solicitor for the Respondent:

Fox & Staniland Lawyers

ORDERS

SYC 2511 of 2012
BETWEEN:	MS JARDINE Applicant
AND:	MR OVERTON Respondent

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	13 JULY 2021

THE COURT ORDERS THAT:

1.The Orders of 21 November 2013 remain in force.

2.The mother’s application filed on 4 May 2021 is dismissed.

3.Within 21 days of today’s date, the father shall provide to Chambers written submissions in relation to costs. If no submissions are received the matter will be finalised.

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 under the pseudonym Jardine & Overton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. These are parenting proceedings with respect to the child X born 2008 who is aged 12.

2. The mother is proposing to move to Perth, Western Australia with X, as she has been offered a more secure position of employment. The father is opposed to this and wants the current parenting arrangement to stay in place.

3. These reasons explain why I have decided that X should remain living in Sydney, NSW with the mother.

   ISSUES

4. The issues requiring determination are:

   (a)Whether X is permitted to relocate to Perth and if so;

   (b)What time should the father spend with X?

   BACKGROUND

5. The mother was born 1967 and is aged 53 years.

6. The father was born 1967 and is aged 53 years.

7. The parties commenced a relationship in January 2004 and cohabitation in June 2005.

8. X was born 2008.

9. The parties separated on 21 May 2010.

10. On 2 May 2012 the father commenced proceedings in the Family Court seeking final property orders. The matter was transferred to the Federal Magistrates Court (as it was then known) on 25 January 2013.

11. On 23 October 2013 the parties entered into a Binding Child Support Agreement. Pursuant to this agreement, the father provides child support through payment of X’s school fees and related expenses. The mother maintains X’s private health insurance. The agreement stipulates that the father pay child support as assessed by the Child Support Agency in the event that the mother’s gross income falls below $30,000 per annum.

12. On 21 November 2013 final consent orders were made by Judge Scarlett with respect to both parenting and property. Notably, the parenting orders provide for equal shared parental responsibility, for X to live with the mother and spend time with the father for two nights each week, half the school holidays and on special occasions.

13. The mother commenced working at Employer A as a manager in January 2015. She was promoted to her current role in early 2019.

14. It seems that since 2018 Employer A has responded to budgetary shortfalls by offering redundancies. At a work meeting in December 2020 the mother was advised that her team would be restructured and redundancies made available.

15. The mother provides evidence that she has unsuccessfully applied for a range of roles commensurate with her experience since 2018.

16. In February 2021 the mother applied for the position of manager at Employer B in Perth and advised the father that she had done so. They communicated further on the issue.

17. On 14 March 2021 the father sent an email to the mother indicating that he did not agree to the proposed relocation. His position was reaffirmed in a letter sent by his solicitor to the mother on 16 March 2021.

18. On 24 March 2021 the father was contacted by a mediator arranged by the mother about the possibility of participating in family dispute resolution to resolve the matter. The father declined to participate.

19. On 14 April 2021 the mother was formally offered the position at Employer B.

20. On 21 April 2021 the mother was advised by Employer A that her position was being disestablished and her role would be made redundant.

21. The mother commenced proceedings on 4 May 2021 by way of an Initiating Application seeking to relocate with X to Perth.

22. The matter was placed in the National COVID-19 list and was brought before a Registrar. The Registrar made orders for the parties to attend a Child Inclusive Conference and listed the matter for interim hearing before me on 11 June 2021.

23. The interim hearing did not proceed on 11 June 2021 because the legal representatives submitted that they would prefer that the Court make a final determination on the issue. The matter was set down for a 1 day final hearing on 9 July 2021 on the basis that it could be contained to one day.

24. As at the date of the final hearing:

    (a)The mother lives with X in Suburb C, NSW.

    (b)The mother remains employed by Employer A but has accepted a new role at Employer B with a commencement date of 20 July 2021.

    (c)The father lives in Suburb D, NSW with his wife, Ms D and their two children, F aged 3 and G aged 1.

    (d)The father is a healthcare professional.

25. The agreed facts are that:

    (a)These are high functioning parents.

    (b)There are no risk issues.

    (c)To date, the parents have been able to resolve parenting disputes in an amicable matter.

    (d)X has thrived in their care.

    (e)X has a positive relationship with both parents.

    (f)X knows that he is loved by both his parents.

    (g)X loves both of his parents.

    (h)X knows that both of his parents want to do what is best for him.

    (i)If the mother is not permitted to relocate to Perth with X, she will remain in Sydney.

    THE POSITION OF THE PARTIES AND THE EVIDENCE

26. Both parties were legally represented.

27. Cross-examination of both parties occurred.

28. Each of the parties provided Case Outline Documents setting out the material relied on. I have also had regard to the material marked and tendered as exhibits.

29. The Orders sought by the mother are annexed to her Case Outline Document filed and dated 7 July 2021. In summary she seeks:

    (a)that she be permitted to relocate with X to Perth, Western Australia.

    (b)that X spend time with the father in Sydney as agreed between the parties and failing agreement:

    (i)for six weekends during the year;

    (ii)half of the Term 1, 2 and 3 school holidays; and

    (iii)that the Term 4 school holidays be shared equally in alternate years.

30. The father’s proposal is contained in his Response filed 31 May 2021. He seeks that the mother’s application be dismissed and an order be made for costs.

31. The actual status of the mother’s employment and job security was the source of some controversy during the hearing.  On 9 June 2021 the legal representatives for the mother provided to the father a letter from Employer A.  That letter confirmed that a workplace restructure proposal affecting the role held by the mother had been approved and her current position “will be redundant”[1].

    [1] Exhibit 1, p.25.

32. When a subpoena was issued to Employer A and the same letter produced, it became apparent that a paragraph had been omitted from the letter served on 9 June 2021. The letter had been edited by the removal of an additional paragraph. That paragraph indicated if the mother was unsuccessful in securing another position in the workplace restructure, she would then be provided with a formal notice of retrenchment on 5 July 2021. She was unable to produce a formal notice of retrenchment at the time of the hearing. 

33. The mother gave honest evidence about her removal of the paragraph from the letter. She admitted cutting out the paragraph and rescanning it because “it was not true”. These actions do not bode well for the mother. It was put to her that it amounted to forgery. While I found her evidence on the issue to be truthful, the alteration of the letter left me with doubts about the honesty of the evidence she gave on her ability to find other suitable roles either with her current employer, or outside of her organisation. And this was a problem because her case relies on me accepting the proposition that she has little alternative but to relocate to Perth with X.

34. That is not to suggest that the offer of employment is not an attractive one for her. She has been offered a five year contract. In addition to an increased salary and superannuation component, Employer A has offered a relocation support service. There is no question that the role is a suitable one, commensurate with her skills, expertise and industry experience.

35. The mother proposes to leave NSW for Perth as soon as possible so that she can commence the role on 20 July 2021. This would coincide with the commencement of the Western Australian school term on 19 July 2021.

36. As the matter was being heard, NSW is experiencing a serious COVID-19 outbreak and the borders between NSW and other states, including WA have been closed. The likelihood of them opening even within a month of the hearing are doubtful. The mother gave evidence that she had not sought an exemption to enter WA nor was she certain under what circumstances she could travel to Perth.

37. There was some criticism levelled at the mother regarding her plans, or lack of them. At the final hearing she had not secured accommodation in Perth nor had X been enrolled in a school. This made it difficult for the mother to provide a clear picture of what X’s life in Perth would look like.

38. There was also conjecture about the timing of the mother’s departure to Perth. In May 2021 she indicated to removalists that she proposed departing between 11 and 13 July 2021. Under cross-examination she accepted that current restrictions on entry to Western Australia due to COVID-19 meant she had no clear departure date. She was unaware of any exemption process.

39. Unusually for this Court, neither party was critical of the decisions made by each other about X[2]. The father conceded under cross-examination that the parties respected each other as parents and that he was confident that the mother would make appropriate arrangements for housing in Perth. He agreed that the parties would be able to agree on an appropriate school for X to attend in Perth.

    [2] Although the father was critical of the mother’s desire to move to Perth with X.

40. I do not accept that the mother should be criticised for the lack of detail associated with her plans for X in Perth. She has taken the appropriate steps to seek the approval of the Court for the relocation. Given the father’s opposition, the court proceedings to determine the matter on a final basis and the current restrictions on travel it is understandable that she has taken no further steps.

    X

41. It is important to consider X who is the subject child of these proceedings.

42. This year X, who is 12 years old, started secondary school at School H where he is in year 7. X is described by his parents “as a loving, caring, friendly boy”.[3]

    [3] Child Inclusive Conference Memorandum dated 2 June 2021, paragraph 11 (“CIC Memorandum”).

43. X’s favourite subjects at school are sport and geography. He has performed well in mathematics in the past. X also enjoys playing sports.

44. X presented as an articulate 12 year old boy to the Family Consultant, who had thoroughly reflected on the situation.  Both parents described X as emotionally mature for his age and suggested that this was perhaps as a result of growing up with separated parents. Indeed he had tried to resolve the impasse between them on the issue by organising two conference phone calls.

    THE CHILD INCLUSIVE CONFERENCE MEMORANDUM

45. A Child Inclusive Conference Memorandum was prepared by a Family Consultant on 2 June 2021.

46. The Family Consultant made the following observations in the memorandum:

    •It appears that X has a positive relationship with both his parents, understands that he is in the middle of this dispute, and does not want to hurt either parent. He seemed to understand both his mother’s and father’s positions. He described the pros for moving being that: Mum will have more money so that they will be able to do more things; that she will have good superannuation; and be able to afford to send him to university (maybe overseas). X described the cons for moving:  that he will miss his Dad, his younger brothers and Ms E. He said that it was hard growing up without a Dad and sometimes wishes that he could spend more time at his father’s house.[4]

    •The benefit of a move for X will need to be weighed carefully against the disadvantage and impact on his relationships. What support networks, and the environment X will have in Perth, is also a matter the Court will require more information about, as well as how X can continue his passion for sports with regular flights interstate.[5]

    •X indicated that he was willing to move with his mother to Perth, but was also willing to stay in Sydney. X is aware of how important the new job is to his mother, however, it seemed that it would be hard for X to move to Perth as he would miss his father and his relationships with his half siblings.[6]

    •Given the positive relationship between the parents, and that there are no obvious risk factors, it would seem unlikely that the Court would gain new information from a family report. It is recommended a decision be made on this matter as soon as possible to enable X some certainty about his situation. Commencing high school is an important time developmentally and ongoing uncertainty about his future is likely to be increasingly stressful for him.[7]

    (As per the original)

    [4] Ibid paragraph 19.

    [5] Ibid paragraph 22.

    [6] Ibid paragraph 23.

    [7] Ibid paragraph 24.

    THE LAW

47. The principles to be applied when determining competing parenting applications are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

48. When making a parenting order, the Court must consider what is in the best interests of the child pursuant to section 60CA. This requires “the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child of this parenting relationship.”[8]

    [8] Murphy J in Hardie & Capris (2010) FamCA 1046 at [48].

49. In deciding whether to make a particular parenting order I must consider the matters set out in s 60CC(2), being the primary considerations, and s 60CC(3), being the additional considerations.

50. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

51. There are 13 additional considerations which are set out in s 60CC(3). I will address those which are relevant.

52. In deciding what is in the best interests of the individual child, s 61DA and s 65DAA come into play, and, if the child is subject to an equal shared parental responsibility order, then the amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.

53. The High Court in MRR & GR (2010) 263 ALR 368 (“MRR & GR”) provided a pathway to be applied to parenting matters where an equal shared parental responsibility order has been made.

54. The Act does not treat relocation cases as a special category of parenting orders.  In Morgan & Miles [2007] FamCA 1230, Boland J set out the core principles to be applied [at 80]. Those core principles can be summarised as follows:

    (a)that the child’s best interests remain the paramount but not the sole consideration;

    (a)that a parent wishing to move does not need to demonstrate compelling reasons; 

    (b)that a judicial officer must consider all proposals and may, himself or herself, be required to formulate proposals in the child’s best interests; and

    (c)that the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.

55. The need to weigh and balance the child’s best interests with the right of the proposed relocating parent’s freedom of movement was summarised well by His Honour Justice Kirby in AMS & AIF (1999) 24 Fam LR 756 at [144] when he said:

    … …a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.

56. The reasoning that will be applied in this case follows the authority of the Full Court in Collu & Rinaldo [2010] FamCAFC 53 and the pathways set out in MRR & GR. Accordingly, regard will now be had to the relevant considerations under section 60CC.

    PRIMARY CONSIDERATIONS

57. Neither party reports family violence nor other factors that might place X at risk of physical, emotional or psychological harm.

58. Nor is it not disputed that X has a meaningful relationship with the parties and enjoys a strong and loving bond with both parents.

59. I find that it is in the best interests of X for these meaningful relationships to be maintained and nurtured.

    ADDITIONAL CONSIDERATIONS

60. X is 12 years old and is acutely aware of the parental conflict on this issue. Counsel for the father argued that “X does not want to relocate to Perth”.  I am not sure his views are that equivocal.

61. X indicated to the Family Consultant that his ideal situation would be to stay in Sydney and for his mother to find a good job here.[9]

    [9] CIC Memorandum (n 3) paragraph 18.

62. He has expressed a wish to continue to spend time with his father and siblings if he moved to Perth, including joining them on camping trips.

63. The mother indicated that she had discussed the potential move with X who said, “I don’t want to live with Dad but I do want to keep seeing him and my half siblings. I want to stay living with you and so I’m happy to move to Perth.”[10]

    [10] Affidavit of Ms Jardine filed 4 May 2021, paragraph 33.

64. If the Court permits the mother to take X to Perth, he would prefer to move as soon as possible, before his relationships with new friends develops further.

65. X’s views are an important consideration. X has tried carefully to navigate sensitively, between his parents on this issue. And his views cannot be said to provide unequivocal support for either option.

66. The Family Consultant observed that: “[b]oth parents acknowledge the love and care that the other provides for X. They described a history of working together and resolving conflict.  Both parents agreed that the current arrangements had worked well for the past 10 years.”[11]

    [11] CIC Memorandum (n 3) paragraph 7.

1. X enjoys a close relationship with both his parents.

2. The mother is his primary caregiver and his preference is to remain living with her. There was absolutely no criticism made in the hearing about the mother’s parenting of, or relationship with X. Nor would this have been appropriate. She has done, and will continue to do, an excellent job as his primary carer and mother. 

3. The father has remarried. There is no dispute that X enjoys an affectionate and loving relationship with his father. His bond is also strong with the father’s new wife, Ms E and his two brothers F who is 3 ½ and G who is 22 months old. Of his brothers, X has said to his father, “the highlight of my day is when F and G have cleaned their teeth and they cuddle and kiss me before they go to bed”.[12] Annexed to the father’s affidavit is an eloquent and affectionate memoir written by X about the day he met F at the hospital.

   [12] Affidavit of Mr Overton filed 31 May 2021, paragraph 6 (“Father’s Affidavit”).

4. The father gave evidence that he was an active participant in X’s primary school activities and attended parent teacher interviews and assisted X to complete assignments. X has a dedicated study space at the father’s home and the father is concerned that he cannot provide the same support and oversight to X if he were to move to Perth.

5. Impressively, the father has also been the coach of X’s sports team for five seasons. This has meant that during the sports season X sees his father up to twice each week for training sessions as well as for the game on Saturdays.

6. The impression given at hearing is that the mother is a quieter and more introverted person than the father. The father describes many family members and close friends that X has in Sydney and appears to actively engage X in a variety of activities and relationships. I formed the impression that the role the father’s plays in X’s socialisation is an important one. This is not said as a criticism of the mother’s parenting style. X moves between two very different households, and this is very much to his benefit.

7. To the Family Consultant, X observed:

   the pros for moving being that: Mum will have more money so that they will be able to do more things; that she will have good superannuation; and be able to afford to send him to university (maybe overseas). X described the cons for moving:  that he will miss his Dad, his younger brothers and Ms E. He said that it was hard growing up without a Dad and sometimes wishes that he could spend more time at his father’s house.[13]

   (As per the original)

   [13] CIC Memorandum (n 3) paragraph 19.

8. During the hearing, the practical difficulty and expense for X spending time with the father and his family was tested under cross-examination.  On moving to Perth the mother proposes six weekend visits to Sydney per year for X (in addition to half of all school holiday periods).  Perth is 4000 km from Sydney.  There are limited flights even outside of COVID-19 affected timetables.  The flight takes four and a half hours and there is a two hour time difference between Perth and Sydney.  While X can travel unaccompanied, the journey could be described as arduous for a 12 year old boy.  He would not arrive in Sydney until around 11PM on a Friday evening and in order to return to Perth by late Sunday evening he would need to board a plane on Sunday afternoon. And all of this assumes no travel cancellations or delays.

9. X also enjoys playing sport.  It is likely that he would have school sport commitments during school term time.  While the school may accept his obligations to travel to Sydney to spend time with his paternal family, there is a risk that X begins to resent the trips or that in prioritising the trips he is unable to immerse himself in his new life in Perth.

10. The parties accepted that X is a good traveller and that he enjoys travel.  This might be true when he has a holiday to look forward to, but I am not sure the proposal for weekend travel is a realistic one, given the constraints and concerns outlined.

11. During the hearing, the issue of electronic communications was explored.  I have no doubt the father and mother would work with X to ensure that he was in regular electronic communication with the father.  That being the case, electronic communication is no perfect substitute for physical contact.

12. This Court is required to make orders that would be least likely to lead to the institution of further proceedings in relation to X. I am confident that the parties will continue to work well together to ensure whatever arrangements they put in place are in X’s best interests.  In the event that the mother is not permitted to relocate with X to Perth she may face financial pressures.  In that case she might seek to have the Binding Child Support Agreement set aside.

    SHOULD X BE PERMITTED TO RELOCATE TO PERTH?

13. The authorities establish that the child’s best interests, whilst a consideration in a relocation case, is also not the sole consideration[14].

    [14] For example see A & A: Relocation Approach (2000) 26 Fam LR 382 at [408-409] and Morgan & Miles [2007] FamCA 1230.

14. Therefore, it is now necessary to balance and weigh X’s best interests with the right of the mother’s freedom of movement.

15. Counsel for the mother says that “the mother has made a good faith assessment of her options and opportunities and decided that she can give X a better life in Perth”. To assess this, it is necessary to capture why the mother wishes to relocate X and why the father is opposed to such a relocation.

16. The basis upon which the mother seeks to relocate X to Perth are:

    (a)the benefit of a pay increase of approximately $38,000 per year including superannuation which would allow the mother to meet her current and future economic obligations for X;

    (b)serious prospects for career progression;

    (c)lower cost of living in Perth;

    (d)lower cost of school fees for comparable schools in Perth; and

    (e)the mother has close friends in Perth who have agreed to help look after X if she is required to work late or so she can attend social events.

17. While Ms I was on affidavit, she was not called to give evidence. It emerged that the I family have relocated to Perth due to Mr I’s deployment by the armed services.

18. The father’s concerns as to relocation include:

    (a)The relocation and subsequent separation is contrary to X’s views.

    (b)X would not adjust to a separation from his father and his new family including siblings F and G.

    (c)That it would be difficult to sustain a meaningful relationship of the same quality.

    (d)X has close ties to Sydney having lived here all of his life and these relationships will be diminished if he is permitted to relocate.

    (e)That X’s relationship with the father will be diminished as the father will no longer be able to participate in X’s day to day care and normal midweek activities.

    (f)The mother has no family ties in Perth and only one friend. Her employment contract requires her to work outside of normal office hours, and travel. He is concerned that she does not have a support network like that which exists in Sydney for X.

    (g)The spend time with arrangements will amount to a significant reduction in X’s time with the father. While the mother proposes two Sydney weekend visits each term, the father argues that this is not realistic for a 12 year old boy due to time differences, travel times and flight scheduling.

    (h)The COVID-19 pandemic adds another layer of uncertainty to the mother’s plan, as highlighted by the current situation in NSW.

19. To assist us in considering this task of balance and weight it is necessary to capture the benefits and detriments involved for X should relocation occur or not occur.

20. If X is permitted to relocate to Perth the benefits would be:

    (a)He would enjoy the financial security afforded by the mother’s job security and higher income.

    (b)While he would need to enrol in a new school and as he is in year 7 he would have plenty of time to settle into a new school environment for the rest of his secondary schooling. The mother says there are a range of good co-ed independent private schools that he could attend in Perth. She has not selected one because appropriately, she would like to do this in consultation with the father.

    (c)The mother proposes orders that would allow X to spend time with his father (and siblings) 7 -8 weeks of school holidays each year, plus 3 days per month during school terms. He would still be able to maintain a close and loving relationship with his father and siblings. He could also visit his Sydney friends during these times.

    (d)He would be closer to Adelaide where the paternal family live. This would promote him visiting his paternal family including cousins who he is close to.

21. If X is permitted to relocate to Perth the detriments would be that:

    (a)He would not be able to enjoy frequent and regular contact with his father and siblings nor be unable to enjoy the everyday activities or special occasions.

    (b)He would not enjoy the benefit of his father’s regular involvement in his education.

    (c)He would not enjoy the benefit of his father’s regular involvement in his extra-curricular activities.

    (d)He would be leaving a new school where he has just settled and lifelong childhood friends in Sydney.

    (e)There is a risk that he will not settle in to his new school. His father says that while X is personable he “struggles to develop his friendships”.[15] He also says this is improving.

    (f)The COVID-19 pandemic adds another layer of uncertainty to the mother’s plan and may also interfere with the father’s ability to maintain his relationship with X.

    (g)Beyond COVID-19 there are practical difficulties to X spending time with his father. He would need to fly as an unaccompanied minor on a four hour and 30 minute plane flight between Sydney and Perth on a regular basis.

    (h)X’s weekend school and sporting commitments in Perth would be impacted by his frequent interstate travel

    [15] Father’s Affidavit (n 12) paragraph 34.

22. If X is not permitted to relocate to Perth the benefits would be that:

    (a)He remains at his current school and can develop the relationships he is making with new friends as well as maintain other childhood friendships.

    (b)The current parenting arrangements, which see X spending four nights each fortnight with the father (and half of each school holiday period), are recognised by the parties as working well for X. This arrangement will continue.

    (c)His father can remain actively involved in his education and extra-curricular activities.

    (d)X will remain close to his younger brothers.

    (e)He would continue to enjoy regular activities with his father like camping together. This would be more difficult to achieve under the proposed arrangements.

23. If X is not permitted to relocate to Perth the detriments would be that:

    (a)The mother may become unemployed or have to settle for a lessor paid job. In that event she fears the impact this will have on her ability to meet her current ongoing expenses. In that event she foreshadows the sale of her home where she lives with X. This would potentially see X living in a suburb much further away to the father or his school. Currently X can walk home from school to the father’s home.

    (b)The parties entered into a Binding Child Support Agreement in 2013. Under the Agreement the mother receives no child support from the father but in lieu he meets all of X’s educational expenses. The mother foreshadows that with change to her financial circumstances she may need to seek a variation of the Agreement.

    (c)The mother suffers from debilitating migraine headaches brought about by stress. She currently reports suffering them 4 -6 times per month with them varying from 6-18 hours in duration. She is concerned that upon being made formally redundant her stress levels will increase and this will impact negatively on X.

    CONCLUSION

24. I find having considered, weighed and assessed the evidence and balanced the best interests of the child with that of the mother’s freedom of movement that X not be permitted to relocate to Perth.

25. Relocation cases are inherently difficult because ultimately one party will feel aggrieved by the decision and feel that some of their fundamental rights are compromised.  This is certainly the situation here for X’s parents. The reflections of McGuire FM (as he was then known) in S & W [2012] FMCAFam 1127 at [20] are worth including here:

    …proposals of the parents are often finely balanced and see two otherwise good parents unable to negotiate and compromise what can be a life-changing issue for them and their child.  Changes in the practical nature of relationships between children and parents will inevitably result from a relocation. One parent will assume a more primary role and time with a remaining parent becomes less frequent if a relocation takes place. Matters of communication, cooperation and sharing and travel come to the fore…Whatever determination a Court ultimately makes will almost certainly leave one of the parents… aggrieved. If a relocation of a child takes place, then the remaining parent will suffer feelings of loss and perhaps bitterness. There will need to be a significant adjustment in that parent’s own life.  On the other hand, an order which effectively prevents a parent from relocating with the child will similarly cause grief, unhappiness and adjustment.

26. This too is a finely balanced case. I have no doubt that the mother, who has acted in good faith, will resent the father’s opposition to her application and be bitterly disappointed that he has deprived her of the opportunity to gain greater financial independence in Perth.

27. One of the mother’s biggest concerns is her financial security and the negative impact on her living arrangements, mental health and wellbeing should her financial security be eroded. But ultimately there was little evidence before me on this.

28. It would appear that the mother still has the opportunity to apply for new roles with Employer A.  I accept that she may wish to move to another role in the sector, but on her own evidence, she has only been in that industry for six years.  She has been successfully employed in a range of industries for over 16 years.  She presented as a highly articulate and skilled prospective employee. I accept that Sydney is a competitive job seeking environment, and that the mother has been applying for new roles unsuccessfully for several years.  However, I cannot find that the mother has no other alternatives in Sydney, nor that her financial security is as dire as she asks the Court to accept.

29. X clearly has a close and loving relationship with both of his parents. I am certain that the mother will continue to make good decisions for X and that she would not propose moving to Perth if she was concerned about X’s resilience and his ability to rise to the challenge.

30. But I have to weigh up his best interests with the mother’s right to freedom of movement. Ultimately I remain concerned that X is at an important developmental time and there have been few advantages identified for X especially when weighed up against the relationships and security he would leave behind in Sydney.  

31. The father’s commitment to his role as parent to X has been impressive. While he and the mother separated when X was 17 months old, the father has structured many aspects of his life around supporting the mother’s care of X and his relationship with X. This has included:

    (a)Ensuring that his residential locations were within close proximity to X’s place of residence.

    (b)Coaching his sports team for 5 years.

    (c)Changing his work hours to enable him to meet his parenting commitments.

    (d)Supporting X’s attendance at a private school was in close proximity to his residence.

    (e)Providing support to X with homework and studies.

    (f)Nurturing X’s relationships with family and other social networks.

32. I am concerned about how X will deal with the less frequent presence and support of his father and the comfort of his household. I fear that X may not respond positively to being alone in a new state without a friendship and family base beyond what his mother can provide. It is also difficult to make any assessment of whether he will settle well into a new school and community – especially when there is no clear picture of what his options are.

33. I have concluded that if X was permitted to relocate to Perth his relationship with the father would be diminished as the father will no longer be able to participate in X’s day to day care and normal midweek activities.

34. The uncertainty brought about by the COVID-19 pandemic adds another layer of complexity to X’s transition. Even if the mother were able to negotiate her and X’s entry into Perth, it is quite possible that X and the father would be cut off without physical contact for months. The impact on X is potentially compounded by the mother having no family ties in Perth nor a support network like that which exists in Sydney for X.

35. While I have no doubt that the mother has dedicated the last 13 years to parenting X and is only motivated by her desire to continue to provide him with the best life she can, I am not satisfied that she can do this in Perth in the current circumstances.

36. I therefore, order that the mother not be permitted to relocate X to Perth.

I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse.

Associate:

Dated:       13 July 2021