JRO and RJO - [2004] FMCAfam 716

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JRO & RJO

[2004] FMCAfam 716

FAMILY LAW – Relocation application – where wife primary carer – wife proposes relocation to north coast of New South Wales – husband opposes relocation that far away – children’s best interests paramount consideration – relocation granted – contact arrangements discussed.

Family Law Act 1975 (Cth), ss.60, 65, 68

B and B Family Law Reform Act (1997) FLC 92-755
A v A: Relocation Approach (2000) FLC 93-035

Applicant:

J R O

Respondent:

R J O

File No:

PAM4155 of 2004

Delivered on:

26 November 2004

Delivered at:

Wollongong

Hearing date:

24 November 2004

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr G. Thisleton

Solicitors for the Applicant:

Caldwell Martin Cox

Counsel for the Respondent:

Mr P. Campton

Solicitors for the Respondent:

Hansons

ORDERS

Commencing 20 January 2005 orders 16, 17, 18 of the consent orders made in the Family Court of Australia on 28 January 2004 are discharged.
In addition to the contact provided for in the orders made 28 January 2004 the father shall have contact to the children each Wednesday afternoon.
From 21 January 2005 the father shall have contact to “the children” Charles (not his real name) born in 1999 and Gemma (not her real name) born in 2001 as follows:
(a)Commencing the second weekend of school term, each fourth weekend from Friday until 5.00 pm Sunday night. The mother is to ensure that the children depart from Coolangatta airport for Sydney airport no later than 6.00 pm. This contact is to be implemented by the mother ensuring that the children are delivered to the father at Sydney Airport upon their arrival or, should he require it, to his home. This contact shall end with the father returning the children to the mother or her nominee at either Sydney Airport or his home, whichever the father designates. The mother shall pay the children’s travel costs for this contact.
(b)Commencing the fourth weekend of school term and each fourth weekend thereafter, from after school Friday until 6.00 pm Sunday, which contact shall be effected by the father collecting and returning the children from the mother’s home.
(c)Subject to order 4 for the 2005 Christmas school holidays for the first two weeks of the school holidays and then one week ending the Monday before school resumes.
(d)Subject to order 4 excluding the 2005 Christmas school holidays for one half of each school holiday period, being the first half in years ending in an odd number and the second half in years ending in an even number.
(e)On the weekend on which Father’s Day falls in each year, being the first Sunday in September. Should that weekend not coincide with a contact weekend the father shall have contact on this weekend in lieu of the weekend preceding or following Father’s Day as the case may be.
(f)In the event of a period of contact coincides with Mother’s Day, being the second Sunday in May, then the father will forego contact on that weekend but shall have such contact made up on the following weekend or on such other weekend as may be agreed between the parties.
(g)By telephone at all reasonable times.
(h)Such further or other contact as agreed between the parties.
The father has the right to nominate school holiday contact periods different to those provided for in order 3 provided he meets the following conditions.
(a)He must give the mother 8 weeks notice of his desire to exercise mid term holiday contact on different dates.
(b)He must give the mother 12 weeks notice of his desire to exercise Christmas holiday contact on different dates.
(c)Any rearrangement of Christmas holiday contact dates shall not interfere with the schedule of alternating Christmas and Boxing Day.
(d)During rearranged contact the husband shall not go to work.
(e)The rearranged dates shall not exceed the total amount of time that the husband is otherwise entitled to have pursuant to orders 2 and 3.
The above order does not operate if the mother has booked and paid for overseas travel.
If the children are in the Wollongong/Sydney region on Christmas Day both parties shall accommodate any reasonable request from the other party to have Christmas Day contact.
After each school holiday weekend contact shall resume on the second weekend after school has resumed.
Weekend contact is suspended during school holidays.
If a contact period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday.
Both parties shall give the other no less than 14 days notice of a change in their residential address and home landline telephone number.
Each party is to notify the other, and keep the other notified of their current residential address and phone number and is to notify the other of any change in residential address and/or telephone number within 14 days of the date of such change.
Upon the children being eligible to travel as unaccompanied minors, contact changeover shall take place at Sydney Airport. For those flights that the mother books and pays for, the mother shall give the father written details of the flight number, booking reference number, departure and arrival time no later than fourteen days prior to each flight.
In the event that the father elects to exercise contact in Sydney that he would otherwise have exercised where the children live, provided he pays any travel costs associated with this contact, then upon the children being eligible to travel as unaccompanied minors, contact changeover shall take place at Sydney Airport. The father shall give the mother written details of the flight number, booking reference number, departure and arrival time no later than fourteen days prior to each flight.
Nothing in these orders limits the father’s entitlement to attend any of the children’s extra curricular activities.
Nothing in these orders limits the father’s entitlement to attend any activities that parents are usually able to participate in at their school or preschool.
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.
All exhibits tendered in these proceedings shall be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

PAM4155 of 2004

J R O

Applicant

And

R J O

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

Introduction

This is an application by J R O (“the wife”) for permission to take Charles (not his real name) born in 1999 and Gemma (not her real name) born in 2001 (“the children”) to live with her in Kingscliff. Kingscliff is in the Tweed Heads/far north coast region of New South Wales. If successful her application requires variation to parenting orders made in the Family Court of Australia on 28 January 2004.

I incorporate these orders into my reasons.
CHILDREN
(14) That the children Charles born in 1999 and Gemma born in 2001 shall reside with the mother who shall have the sole parental responsibility for the day to day care, welfare and development of the said children.
(15) The parties shall retain the joint responsibility for making decisions in consultation with each other in relation to the long term care, welfare and development of the said children including but not limited to health, religion, region of residence and eduction.
(16) That the said children shall have contact with the father defined as follows:
(a) Each alternate weekend from 7 pm Friday night until 7 pm Sunday night and commencing on 22 November 2003 (excluding Mother’s Day and school holidays periods) and in the event that such weekend encompasses a long weekend, same shall be extended to conclude at 7 pm Monday night.
(b) From 5 pm Saturday until 5 pm Sunday on the Father’s Day weekend.
(c) From 9 am until 5 pm on the father’s birthday.
(d) On each weekend that included Mother’s Day, if same is a scheduled contact weekend, contact shall not take place on this weekend but shall instead take place on the following weekend in substitution;
(e) For one half of Christmas Day as agreed between the parties, for the purposes of Christmas Day 2003, the children can be picked up after opening presents in the morning, and need to be returned prior to dinner.
(f) From 9 am until 5 pm on each of the children’s birthdays provided the said contact occur jointly with the mother;
(g) At such times as the parties mutually agree.
(17) That the parties shall share in the transport arrangements of the said children for contact purposes equally.
(18)Neither party shall be permitted to remove any of the said children from New South Wales without the express permission of other party. Permission is not to be unreasonably withheld.
(19) That the mother and the father will not denigrate each other to the said child or in the said children’s presence or hearing.
They have been registered in this court and I thus have jurisdiction to determine the application.
The wife has formed a strong relationship with J B and wishes to live with him. She also wants to leave the Wollongong area because she feels that she lacks privacy from the husband and others who have taken an interest in their marriage failure. Because her father has repartnered with the husband’s sister, irrespective of the state of these parties' relationship, their families are close. Increasingly, the wife feels unable to participate in her families’ functions because it is likely that the husband, his family and friends will also be present. I accept her evidence that she has deliberately excluded herself from family social occasions in order to avoid having to deal with her former husband face to face. Examples of her social predicament are set out in paragraph 23 of her affidavit. Irrespective of her desire to live with

J B, emotionally she needs to move away from the Illawarra area. The court counsellor agreed that moving away is desirable for her emotional well being.
In June 2004 the wife told the husband of her plan to move to Kingscliff. Although not presented as a fait au compli, she made it plain that unless he agreed with her proposal, she would seek an order enabling her to move. Thus, these proceedings started.
On 3 September 2004, on the husband’s application for interim orders, I made the following order:
The applicant mother be restrained from moving the residence of the children Charles born in 1999 and Gemma born in 2001 more than 50 kilometres from their present residential address.
Because she had given up her rented home in anticipation of moving to Kingscliff, since then she and the children have lived with her father in the Wollongong area.
In his response the husband asked that the children live with him. During opening addresses his counsel advised that the husband only sought residence of the children if the wife proceeded with her relocation to Kingscliff, irrespective of whether the children moved with her. The wife’s counsel immediately responded that she would only move if permitted to take the children. With that concession the husband abandoned his residence application. Ordinarily, this would entitle the court to draw an inference that the husband recognised that the wife competently provided for the children's physical, intellectual and emotional needs. However, I was spared the need to consider inferences because the husband made it plain, in both his written and oral evidence, that he highly regards the wife’s parenting capacity. In his opinion in her primary care the children's needs are met to a high standard and provided he can exercise regular and appropriate contact, their future wellbeing is assured.
The husband’s positive regard for the wife as a parent was clear to the court counsellor and underpins the husband’s ready acceptance of J B as an appropriate participant and role model in the children's lives. Although the husband met J B for the first time during the family report process, he explained to the court counsellor that he trusted his former wife’s judgment in terms of whom she would select as her partner. Simply put he trusts her not to bring someone into the children’s life who is in any way inappropriate.
The wife is also highly respectful of the husband’s importance to the children. Both she and J B consider the children's good relationship with their father is critically important to the children's happiness and wellbeing. While they understand the husband’s fear that the children's relocation could mean that his role in his children's life would be diminished, neither accepts that this outcome is inevitable or even likely.

Background events

The husband was born in 1968 and is 36 years old.
The wife was born in 1970 and is 34 years old.
The parties met in 1996. They married on 29 August 1998, at which time they commenced living together.
Charles was born in 1999. After his birth the wife reduced her working hours. Both parties wanted the children to have the benefits of a fully available parent and agreed that the wife would fulfil this responsibility. Thus from the time of their eldest child's birth she has assumed primary responsibility for the children's care.
This freed the husband up to pursue his building career, confident that the children's needs were well met. To the extent that he was available the husband participated in the children's care. However, because his work days are long, his daily practical involvement in the children's care was not very substantial.
When Charles was 5 months old, the parties moved into their own home near Wollongong, “the Wollongong home”. As part of their property settlement, the husband acquired the wife’s interests in this property. The home is now tenanted.
Gemma was born in mid 2001.
The parties separated on 3 May 2003. After separation, the wife and children remained in the former matrimonial home until they moved into rental premises near Wollongong, “the Wollongong rental property”. The husband returned to live at his parents’ home which is also in Wollongong.
When the parties separated, Gemma was 18 months old and Charles was 3½ years old. Immediately after separation, the husband exercised contact to both children each alternate weekend and Wednesday evening. The wife’s father did all the travel associated with weekend contact, driving the children to and collecting them from the paternal grandparents' home.
For a short time the parties trialed an arrangement whereby the husband would come to the former matrimonial home to share a midweek evening meal as a family. This was the Wednesday contact to which I have made reference. Because being together always resulted in angry arguments, the parties stopped the midweek visits. The wife believes these stopped in July 2003, whereas the husband says it was 7 August 2003. Nothing turns on this factual dispute.
After separation, the husband was working on a building site only five minutes away from the former matrimonial home. After they stopped sharing Wednesday meals, the wife suggested that he collect the children Wednesday evenings and spends time with them, perhaps at a local family restaurant. Because it was mid-winter and the choice of venues limited and unsatisfactory, the husband declined. Whilst this may have been reasonable, his stance is revealing. It shows that although Charles was 3½ and Gemma only 1½, he was confident that alternate weekend contact was sufficient to maintain and develop his relationship with the children. Also, he was aware that the wife promoted mid-week contact. Even when the weather improved, he made no attempt to take up her suggestion of mid-week contact. It is apparent that the husband’s assessment of the children's capacity to develop a strong relationship with him centred on predominantly alternate weekend contact was correct.
In July 2003 while the wife was visiting a girlfriend in Queensland she met J B.
In January 2004, the mother and children holidayed in Queensland. The holiday had been arranged before she met J B. Fortuitously, this gave J B the opportunity to meet the children and vice a versa. The holiday went well and the children related comfortably to J B. From this time the wife and J B was increasingly confident that they had a future together. They had been discussing marriage and their long term future since November 2003. However they proceeded cautiously because the wife does not regard herself as a free agent and has the children's interests to consider. Particularly the children's relationship with their father and the ramifications of relocation to far northern New South Wales.
Since June 2004, on most contact weekends, the wife has flown to Queensland and stayed with J B. She places the children in daycare and preschool on Friday mornings. Her father collects them in the afternoon and takes them back to his home. The husband collects them and they remain with him until Sunday evening. At the end of the weekend on Sunday evening, the husband delivers the children to his sister. The children remain with her until the wife collects them during the day on Monday. Again, this arrangement is instructive. It demonstrates that the husband’s work commitments make it impossible for him to collect the children from preschool and daycare with any frequency or, thus far, at all. It also shows that his work commitments make it impossible for him to have the children on Sunday nights and get them organised for Monday morning. Because he leaves for work at about 5.45 am, this is understandable. The significance of these arrangements however is that given the opportunity for longer contact on weekends, the husband does not take advantage of it. According to his sister's evidence he routinely foregoes Sunday night contact and the children stay with her. Her evidence was not the subject of any challenge and I accept what she has had to say.
In early May 2004, the mother applied to the Department of Education for a compassionate transfer to Tweed Heads. After separation, the Department of Education and Training provided her with six counselling sessions. With her counsellor's support, she completed the application.
Some time in June 2004, her transfer application was approved. She has been offered permanent/part-time work, two to three days per week commencing 2005 in the Tweed Heads region. She has the option to work full-time should she wish to do so. The wife is fortunate in having achieved what she describes as a sought after posting. I accept her evidence that it is sought after. I also accept her evidence that having been offered a compassionate posting she is unlikely to have a similar opportunity made available for a long time if she turns this one down. The only outcome if she turns it down is that she might be able to return to her present part-time position at a Wollongong Public School.
On 26 June 2004, the wife told the husband that she wanted to move to Kingscliff. He immediately advised her that he opposed her proposal.
By order 15 of the orders made on 28 January 2004, the parties must agree on the children's residence and changes to it. Because the parties disagreed the wife was not entitled to change the children's residence without the husband’s consent or a court’s imprimatur. Having taken legal advice, the wife seems to have understood that so long as she maintained the existing arrangements for ordered contact, then order 15 was basically irrelevant. In this regard she was poorly advised. The order is clear in its terms. She needed the husband’s consent or an order.

The parties immediately consulted solicitors. Attached to the husband’s affidavit is a series of correspondence passing 23 June, 2 July, 7 July, 8 July and 9 August 2004 with the parties proposing various alternate scenarios viz contact.
The wife’s position was that she was moving and the husband could have contact, at least with the frequency provided for in the existing orders. The husband’s position was that the wife was not moving and he withheld his consent. There was a stand off between them concerning the relocation and thus the proceedings commenced. Notwithstanding that she did not have the husband’s consent to relocate, the wife terminated her lease on the “Wollongong rental property” and rented a home at Kingscliff. She filed her application for final orders on 17 August 2004. Somewhat surprisingly, given that she anticipated moving in September 2004, she did not include an application for interim orders. The absence of an application for interim orders suggests that her understanding of her obligations pursuant to order 15 is consistent with the advice given to her by her solicitors. Otherwise I would have expected to see an application for interim relief included in the application filed 17 August 2004.
On 26 August 2004, the husband filed an application for an urgent injunction. That matter came before me on 3 September 2004. As I have previously indicated I made orders consistent with those the husband sought. On 6 September 2004 further directions were made preparing the matter for trial.
The injunction having been obtained, with the husband’s agreement, the wife and children drove to Kingscliff for a holiday between the

4 and 10 September 2004. I accept the wife’s evidence that by car it is an 11 hour trip door to door. Given the children’s ages she sensibly broke the journey midway. The children enjoyed the trip to and from Kingscliff and had the opportunity to stay in the home that the wife says they will move to in Kingscliff if her relocation application succeeds. This also gave the children another opportunity spend time with J B.
The wife’s relocation application spurned the husband into belatedly taking up her earlier offer for midweek contact. Following the children's return from Kingscliff, the parties re-established Wednesday evening contact and the husband spends time with the children most Wednesdays where they enjoy an evening meal. Quite often this is taken at his parents’ home.
There was a pattern established last Christmas whereby the children have special time with their father on Christmas Day and Boxing Day which it is anticipated will happen again this year.
During 2004 the husband had a block period of contact at Easter for between seven to ten days. He also had the children for a few additional days at Christmas time. At Easter this year, J B came down and spent time with the wife, meeting members of her family.

The wife’s circumstances

Since 3 September 2004, the wife and children have been residing with her father in the Wollongong area. This is a temporary arrangement pending the outcome of these proceedings. If she fails in her application to relocate, the wife does not propose to remain at her father’s home and will move. Where she will move is uncertain. The husband’s approach is that the wife should move no further than Sydney. The wife says she has no intention of living in Sydney. She says she cannot afford the cost of accommodation and cost of living in Sydney. I accept her evidence insofar as she claims it would be very difficult to establish a reasonable standard of living in Sydney or one that is comparable to that which she currently enjoys or which she could create in Kingscliff. In lifestyle terms of the available options Sydney is not sustainable. The husband says that if the wife can afford $600 – $700 per month facilitating contact from Kingscliff, she can afford to pay more rent and hence she can afford to live in Sydney. This submission misses the point that there is more to lifestyle than the cost of rental accommodation. For example while the wife and J B could pay increased rent if they lived in Sydney their capacity to eventually buy their own home is restricted by the higher cost of housing living in Sydney entails. For example there are also considerations concerning the distance and time needed to travel to and from work and easy accessibility to recreation facilities.
The wife qualified as a teacher 1993. Presently she works part time at a local public school. Her income comprises a combination of salary, child support and Centrelink benefits.
This year she has travelled backwards and forwards between Sydney and Kingscliff on weekends when the children are with their father.

J B has paid her airfares. Her family lives in the Illawarra and Macarthur area. She has no family in Kingscliff. The wife is very close to her father and her mother's sister who she refers to Aunty J. She is estranged from her mother and her mother's sister is her best friend and stands in her mother's place. Aunty J lives reasonably close and provides the wife with strong emotional and practical support. The wife has two sisters. These girls live independent lives and although she is close to her sisters they do not provide the wife with any meaningful practical assistance in terms of the children's care. Should the relocation application succeed the wife plans to visit her father, Aunty J and sisters while she is in the Illawarra with the children for monthly contact. In terms of her relationships with her family the move to the north coast will not disrupt these relationships in any meaningful fashion. While the children will see less of their maternal relations the mother will ensure that the children still see her father, with whom they are close, often enough to maintain the relationship.
The wife is confident that she and J B have established a strong and loving relationship. She is committed to him and is optimistic for the future of their relationship. Their plans for a gradual introduction of J B into the children’s lives have been held up by these proceedings. They had planned that the wife and children would move to Kingscliff and that J B would live separately in Kingscliff slowly becoming a more substantial presence in the children's lives. Notwithstanding the delay in implementing the wife’s relocation plans they will take the same approach. The pace will not be quite as relaxed as it might have been but for these proceedings.
The wife has rented a home at Kingscliff for which the rental is $270 per week. She has found a local childcare centre, which centre has offered the wife a place for both Charles and Gemma. She plans that the children will attend the local primary school, which is a five minutes walk from the Kingscliff home. Her teaching position will be at a school in the Tweed Heads region. By having the children in a New South Wales school their hours will match hers. During their school holidays the wife will also be on leave. Because the school where she will work is close to the local childcare centre and the local primary school, the wife will be able to deliver the children to school and preschool in the morning and collect them from school in the afternoon. The arrangements she has made for the children in Kingscliff are more than adequate to meet their physical and educational needs.
Subject to the cost of living the wife could make similar arrangements in Sydney and equivalent arrangements on the South Coast. Putting cost to one side from her perspective the difference is the involvement in her life of her partner J B. J B is a qualified chef and has a Master of Business Degree. He worked overseas for five years and more recently in Sydney for two. In 2002 he returned to Brisbane where he is from and has his family. He has pursued a career in hotel management and held a number of senior positions during the Sydney Olympics with SOCOG and in Brisbane. In September 2004, he took up the position as general manager of a club. He is delighted by this position because he says for the first time he has secured a position in the hospitality industry that is family friendly. Instead of working shifts that end at 2 am or 3 am with weekends rarely off and always required to be on the premises during peak holiday times, he is able to work 9 am to 5 pm Mondays to Fridays. I accept his evidence that this type of position in his field at his level is rare, almost unheard. Presently he is earning $65,000. This is a start up salary while he is on three months probation. His salary is due for review and will increase over each of the next quarterly reviews. His position seems secure. He is certainly settled and feels happy with what this position offers now and in the future.
Although he is demonstrably committed to his relationship with the wife, J B resisted attempts by counsel to force his concession that if her relocation application failed he would move to Sydney or elsewhere to be with the wife. I will deal with that issue later. J B says he is willing to contribute to the effort and costs associated with contact and has factored in about $600 to $700 per contact occasion for the costs of air travel. I accept his evidence that he will contribute in the manner outlined in his evidence.
During her oral testimony the mother said “J B will live where I live”. He was more circumspect. Whilst he is committed to his relationship with the wife, he is clearly confronted by the prospect of returning to Sydney. He left Sydney because it did not meet his aspirations in terms of the lifestyle available elsewhere. The fact that there are larger hotels and significant career opportunities in Sydney has long lost its allure. J B does not accept that he could obtain a comparable position on the south coast. Notwithstanding the evidence concerning club membership in Sydney and on the south coast there was no evidence that there are comparable positions available to that which he has as general manager of the Club. It has taken J B many years to find a family friendly position in the hospitality industry. This indicates that such positions are few and the mere fact that there are clubs in Sydney and on the south coast does not mean such a position is likely to become available.
Northern New South Wales and the Gold Coast has been a lifestyle and career choice for J B which he is not ready to give up. His parents reside in Brisbane. He has an adult brother who suffers from schizophrenia living with his parents. J B’s presence in far northern New South Wales is an important component of his parents' capacity to keep their adult schizophrenic son in the family. J B offers his brother and parents significant support, which he could not maintain if he moved away. He is understandably concerned of the effect on his family of moving. J B impressed me. He obviously has a lot to contribute to the children's lives. He has good personal values and is an impressive role model. Importantly, he is clear that he will not attempt to usurp the husband’s role in the children's lives. His values compliment the husband’s values. In many respects these two men are quite similar. The significance of J B’s involvement, should he live with the wife and children is that the children will have a valuable male role model in their daily lives, even if they do not have daily contact with their father.
The wife’s contact proposals are particularised in her application and affidavit. Basically she proposes that the children have alternate weekend contact, one weekend in the Tweed Heads area and one on the south coast. Until the children are old enough to travel as unaccompanied minors she will bring them to Sydney by aeroplane. Once able to travel unaccompanied they will travel alone. On the other weekend the wife proposes that the husband come to Tweed Heads. She thought that he might choose to stay with an elderly aunt. I accept the husband’s evidence that it would be unreasonable to expect him to impose two boisterous children on an elderly relative who has never met the children. Thus this style of contact will involve the husband renting accommodation. Tweed Heads/Coolangatta is a well known tourist area and I am satisfied that with minimal effort the husband could locate appropriate holiday apartment style accommodation for use during contact. The wife will make her car available to the husband when he is on contact. So that contact is enhanced she will also make the children’s bikes and toys available. There are regular air services between Sydney and Coolangatta, the nearest airport. If booked well in advance internet fares are as low as $75 one way. Flights leave hourly on Friday and Sunday evening. Coolangatta to Kingscliff is about 5 minutes by car and Wollongong to Sydney airport is about 60-90 minutes depending on the traffic. The flight itself takes about 55 minutes. All together the journey is about 3 hours door to door. While the trip will be somewhat tiring it is not so arduous that it will interfere with the husband and children’s capacity to enjoy contact.

The husband’s circumstances

The husband lives with his parents in the Wollongong area. He plans to remain living with them for at least the next 12 months. His mother suffers from Parkinson's Disease and he assists his father in her care. The husband could not say where he would be living two years from now. That far ahead, he said, is simply speculation. He is however committed to the local region and there is no suggestion that he would voluntarily move any distance away.
The husband is a qualified childcare worker. Using the communications skills and education achieved in obtaining his diploma, he has moved into the building industry. He is employed by an international building company based in Sydney. Recently he turned down the opportunity to work in New York on the World Trade Centre rejuvenation project. He turned it down because he felt living in New York would make it almost impossible to maintain his relationship with the children. The husband has a series of qualifications which mean he is responsible for site safety. His work involves ordering materials, ticketing, managing on-site safety, checking the accuracy of key measurements, making sure crew are on time, managing the job and keeping it going. He is not a project manager, but when project managers are not on site he is responsible for the site. The sites that he works on are multi-million dollar projects.
The husband has worked with his current employers for seven years and has acquired skills, qualifications and respect in the industry. His salary is $45,000 per annum. The skills, qualifications and respect that he has in the industry are transportable. Whether the conditions he has established with his current employers, viz a viz, time to spend with the children are transportable is not so certain. The husband works 12 to 14 hours a day. He has arranged with his employers to have one weekend at least each month free and on another weekend, at least Saturdays when he need not work the full day. Thus in two out of four weekends he has at least one full weekend and quite often a second full weekend which coincides with contact.
The husband has 568 hours accrued leave. This means that he has not taken about 15 to 16 weeks annual leave to which he was entitled. That large number of hours demonstrates his commitment to his work. Although he has conditions which would enable him to take much greater time from the workplace than he does, for example prior to separation with his family or since with the children, he has chosen to accrue leave rather than use it. His cross-examination concerning Christmas 2004 was instructive. It took considerable cross-examination from the wife’s counsel before the husband committed to block contact during the forthcoming school holidays. Having said that he wanted contact he was forced to agree that he not made arrangements with his employer. He has not even put in an application to have recreation leave. When pressed, he eventually said that he would like to have a two week block period starting sometime after Christmas. He could not give the dates when he would have the contact. He said he is confident that when he does ask for leave, his employers will make it available. This is conditional upon the job he is working on ending when hand over of the site is due. The project is due for completion at Christmas 2004. If it is on time, the husband will take leave. If it is not on time, it is more likely that he will continue in the job and contact might have to be delayed or perhaps forgone altogether.
When this job finishes the husband’s employers has building work at Randwick and Penrith. They have tendered for a site at Wollongong, the outcome of which is not yet available. Thus of the current jobs available, the husband is likely to work at Randwick or Penrith. If he does so, while working on these sites midweek contact is unlikely to continue. It is obviously impracticable. Given the nature of the husband’s work and his commitment to his employer this is likely to be a recurring issue. It is only when he is working on local sites that he could routinely avail himself of midweek contact.
Putting to one side his emotional opposition to the relocation, the husband said that if the children reside in the local region, there is a greater opportunity for him to participate in extra activities, for example, to be present on the first day of school, to attend parent/teacher functions, to watch sport when the children start sport or participate in extracurricular activities. The flaw in this is that with the opportunity to do so since separation, the husband has not participated to anywhere near the extent the wife has made available. His desire is limited by the demands of his work. If the past is anything to go by, it will only be on limited special occasions that the husband would take up the chance to have this extra involvement in the children's life.
The husband pays the wife $190 per week child support.

The relevant law

Contact and relocation orders are parenting orders. The applicable law is well settled. These proceedings are conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child are the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the parenting arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.

When a court is considering a residence or contact application that includes a proposed relocation the Full Court in A v A: Relocation Approach (2000) FLC 93-035 identified the approach which judicial officers should follow in the adjudication of these matters. The Full Court held[1]:
"It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
[1] at paragraph 108 from 87,551 to 87,553
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way, which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'”.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in ss.60B and 68F of the Family Law Act 1975 (Cth). The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s.60B provide guidance to a court's obligation to consider the matters in s.68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
i)A court will identify the relevant competing proposals;
ii)For each relevant s.68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the court thinks fit having regard to s.60B;
·As one, but only one, of the matters considered under s.68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
iii). On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s.92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss.60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.’

Determining the children’s best interests

In the family report, the court counsellor reports on the children's relationships. She says this:
“The children presented as age appropriate in their development. They were socially engaging and quite secure in the care of both parents. The stronger attachment to their mother was obvious. They have obviously been well socialised and stimulated. Their play was extremely well constructed for their respective ages. It would appear at least currently that the negative effects of parental separation for these children have been minimal. Both Charles and Gemma presented as secure in and enjoying the company of their mother's new partner. A parental relationship is unusually healthy with regard to the potential for joint communication for a family at this stage of the legal process. The children present as secure within themselves and in their relationships with both parents. There is obviously stronger attachment for both children with their mother. Both parents were observed to provide adequate immediate care and sensitive consideration of their children. As stated however, the mother appears to have given insufficient consideration to the extent to which the children would miss their father if they were to relocate as far as way from him as Tweed Heads. As well, the father presented as regarding the effects of the relocation in terms of his own needs and feelings, not the children's.”
The court counsellor recommended that it was imperative that the children remain in the predominant care of their mother. She strongly recommended that the mother be permitted to move away from the Wollongong area to an area of her choice. The qualification is that the counsellor concluded:
“It should preferably be one that allows regular and frequent physical contact of the father in the lives of the children.”
The court counsellor was of the opinion that Tweed Heads was too far away.
Concerning the observations of relationships and parenting capacity made by the court counsellor, I give these considerable weight, they accord with my own assessment, indeed they accord with the parties' assessment.
Because since separation the children have lived with the wife, she has been the one truly constant figure in the children's lives. She has been intimately involved in their development and nurtured both children to a greater extent than any other person. The children's relationship with her is essential to their capacity to continue to grow as happy, well adjusted children, meeting all of the milestones in accordance with their chronological age. That the children are such happy, well adjusted children is overwhelmingly the result of the wife’s competent care and commitment to their welfare.
It is axiomatic that a parent's capacity to meet their child's emotional and psychological needs is maximised if they themselves are settled, secure and happy. This is an important consideration for children's long term development and adjustment. Being isolated on a continuing basis from her partner, which must put their relationship at some risk is likely to undermine her sense of happiness and thus emotional wellbeing. In all probability, this in turn is likely to undermine her capacity to meet the children's emotional needs to the extent that she is capable of and they are used to enjoying. In Kingscliff she will have the financial and personal support that she needs to maximise her capacity to provide the children with the high quality support and nurture that the children have received since birth. This will maximise not only the quality of their relationship with their mother, but also their capacity to maintain strong relationships with their father and other relatives. This is because the children will have the security inherent in their strong relationship with their mother offered in the environment that enables her to most effectively parent them. This is a weighty matter that supports the wife’s application to live in Kingscliff with the children.
Somewhat belatedly the husband has realised that his involvement in the children's daily lives has been less extensive than the wife considered desirable and less extensive than he was able to take. He chooses now, in the face of these proceedings, to assume greater responsibility for the children on weekends and in the last few months he has exercised the Wednesday contact to which I have made reference. Compared to the wife’s relationship however, the husband’s relationship and contact does not have the same centrality to the children's lives. I am satisfied that the wife’s relationship with the children is the most important factor that contributes to the children's happiness and stability. In spite of the increased time the husband now has with the children, she quite clearly remains the children's primary care giver. Any outcome that undermined that relationship or the children's capacity to have their mother's consistent nurture at a level that she is best able to provide is inconsistent with both children's welfare in the short and long term. This is a matter to which I attach significant weight and which weighs in favour of the wife’s relocation application.
The most significant advantage of the husband’s proposals is that he would have free and easy contact to the children and they to him. Consequently he has a greater opportunity to for meaningful involvement in the children's care. If this occurred potentially their relationship would become even stronger than it is now. The advantage of proximity of the parties' two homes for the children is obvious. The husband could have more regular contact than living in separate regions makes possible. Of course this outcome could be achieved if the husband moved to Kingscliff. I do not accept that his career would be irretrievably damaged in the long term if he relocated, although I do accept that in the short term it would require considerably more effort than similarly continuing working with his current employers. The husband was upset when addressing this issue, but with respect to him, his dilemma is no less confronting than that which the wife faces. Whilst the best outcome from the children's point of view would be achieved if the husband also moved to Kingscliff, his decision not to do so does not mean that his relationship with the children will be undermined. I am satisfied that even with the distances involved, his relationship with the children will be maintained at its current level and continue to grow in accordance with the opportunities for regular contact.
Of no less significance is my satisfaction that the wife is strongly committed to the children's relationship with their father and that she will positively reinforce it with both children. Similarly even if he stays in the local area, the husband will exercise the contact to which he is entitled. Thus his relationship with the children will continue to grow and become ever increasingly a warm and loving one. These relationships are strong enough to grow in spite of periods of a few weeks of no face to face contact. This weighs in favour of the wife’s relocation application.
Section 68F(2)(c) is a pivotal subsection in this matter. I have already dealt with significant aspects of it when considering the effect of the relocation on the children's relationship with their father. I will consider the remaining issues in conjunction with matters that arise pursuant to s.68F(2)(d). The wife’s proposal involves significant change. From the children's point of view on the wife’s proposal they will change their home, lose opportunity for midweek and impromptu contact, the frequency with which they see members of extended family will reduce to an extent. Preschool will change and they will have increased contact with J B. Charles will start school in 2005 which means that irrespective of where he lives changing making new friends and adapting to school will happen wherever he lives. Examined from the children’s perspective however, the daily rhythm of their life will continue. Some of the people and places will change, but the essential structure of their life will be the same. That is primarily cared for by their mother, attending school or preschool and having regular contact with their father.
Critical to my assessment of the children's capacity to adapt to the changes proposed by the wife is my assessment of her capacity as a parent and the nature of her relationship with the children. I was highly impressed by her parenting ability. I am satisfied that she is a committed and competent parent who is extremely focused on the children's welfare and is attuned to their needs. Because of her skills and capacity as a parent, she has the ability to minimise the disruption to both children and to make the transition to living in Kingscliff a smooth one. With her, the children will be able to move to Kingscliff with only limited disruption. Any disruption is likely to be short term. It will not have adverse long term consequences in terms of the children's overall adjustment.
The main consequence of her move to Kingscliff is the reduction in the free and easy contact that the children enjoy with their father. In a practical sense this means that the midweek contact will end. In reality, in the 18 months since the parties have been separated, notwithstanding that this contact has been available to the husband throughout, he has availed himself of it for a total of about five months. His decision to not take the contact in the remaining 13 months reinforces my comfortable satisfaction that his present commitment to midweek contact is far from certain to continue. When there is a tension between work and midweek contact, midweek contact will be relinquished. This is likely to happen sooner rather than later. This is a key finding. That is because the court counsellor's recommendation that the children not move as far away as Tweed Heads centres upon the desirability of the children's father being able to participate in what was referred to as "extras". The extras are the type of school and social activities to which I have earlier made reference. There is no evidence that in the 18 months since separation although the husband has had this opportunity, that he has availed himself of it. He says he would like to and I am sure he means this with all his heart. The truth though is that in this case theory does not match reality. To a considerable extent his ambitions would be a triumph of hope over experience. I do not believe that holding the wife back so that the children could have the opportunity for the husband’s ad hoc participation in extras is a proper exercise of my discretion. That is because I am persuaded that the husband is not likely to avail himself of the opportunity with any frequency. His only weekend time is already taken up with contact. On other weekends he must work, thus he is unlikely to be involved in weekend sports or activities more extensively than during contact. Analysing his working week, particularly when working away from the south coast his capacity to participate in school events or extra curricular activities is extremely limited. As between the two parents, the parent who wherever the children are and wherever the parents are, is committed to extras is the wife. This is weighty matter that weighs in favour of her relocation application. As a consequence, it must be plain that I am satisfied that the children should be allowed to relocate with their mother to Kingscliff.
It was submitted on the husband’s behalf that the wife’s plans for Kingscliff are experimental and centre on a relationship which is far from certain in terms of its future. I do not accept this submission.

I am satisfied that the wife and J B are committed to each other. Although J B is not committed to moving south given the opportunity to be together in an environment where both wish to live, have about them all the indicia which one would hope means their relationship is likely to endure.
The wife’s proposals for contact as outlined in her counsel's opening and her application are consistent with the type of contact that has existed since separation. Indeed, although the husband has been entitled to have holiday contact of block periods of up to a month, he has not taken that contact to which he is entitled. If he takes the contact which the wife proposes, he will have extensive, regular, structured contact with the children. It will not be quite as free and easy as has occurred to date. It will require forward planning. Provided the husband arranges his work so that he continues to have weekends off and takes holidays contact although more structured will stand the husband’s and children's relationship in good stead. It means that he will have to weigh up in a much more acute way, the competing demands of his work and his family. It may result in his family having greater prominence than it does now. This sounds critical of the husband and I do not intend it to be. He loves his children dearly and is very committed to their welfare. He has large demands on his time and while he makes a strong commitment to the children, it is not as all encompassing as the commitment that the wife makes.

Conclusion

I am satisfied that the wife’s relocation application best provides for the children’s long term needs. In reaching this finely balanced decision I have not overlooked the husband’s submission that the children's relationship with him is at a vulnerable stage and that given their ages, distance and air travel which involves three hours door to door is inconsistent with successful contact. I do not accept that the children's relationship with their father is vulnerable. This submission is inconsistent with the husband’s decision to have less contact than the wife offered the description he gives of the children’s interaction with him during contact. I accept that contact will happen with the frequency ordered. This involves considerable effort by the parties, children and J B. If as they hope the wife and J B have children of their own, it may be necessary that J B helps out with by accompanying the children if the wife is unable to travel.

I have no doubt that J B will do whatever is necessary to ensure the wife meets her obligations under these orders.

I am satisfied that the children are sufficiently robust that for the next two years when the wife travels with them, they will take the air travel in their stride. Two years from now they will have travelled to Sydney each month and for school holiday contact. They will be reasonably adept and experienced travellers by the time they are eligible to travel as unaccompanied minors. I do not accept at long term they will find the travel unduly burdensome. Certainly contact will not be as easy as living in the same neighbourhood, but it is not so difficult that the travel and structure are going to undermine the frequency or quality of contact. If on occasion one or both of the children are disinclined to make the flight to Sydney the wife will ensure that the contact occurs. I am confident that the wife will positively encourage contact and if at any stage the children are disinclined she will ensure that they understand its importance and overcome any opposition.
The orders proposed by the wife are consistent with the children’s long term best interests. My orders will largely reflect her proposals for contact. The wife sought an order that the husband’s holiday contact is conditional upon him taking time from work so that he is available to spend all of the available time with the children. I do not propose to make an order in these terms. The important issue is that the children have contact with their father; he does not need to be available for them every moment of contact. He has a girlfriend with whom it appears the children are getting along with nicely. They are establishing an easy relationship with her two children. If contact is limited by the husband’s availability there is a real prospect he will not exercise all of the school holiday contact to which he is entitled. This would be to the children's detriment. If they are at least in his home with him coming backwards and forwards from work each day, the children have the chance to see him daily and to an extent, immerse themselves in his life. Obviously it is preferable that he takes the time from work, but if he cannot, contact will still happen. I have no doubt that if he must work the husband will make proper arrangements for the children’s care, he has an extensive family network that he can call on for assistance.
The husband will have the opportunity to nominate specific periods for school holiday contact that departs from the primary structure of alternating halves in odd and even years. Provided he gives the wife eight weeks notice for mid-term holidays and twelve weeks notice for Christmas holidays, he can nominate the dates upon which he wishes to have contact. He will only be able to exercise this right if he has taken leave from work, otherwise if he does not do so, it would be unreasonable to expect the mother to rearrange her commitments to meet the father's convenience. This maximises the prospects that the husband will be fully available throughout the holiday contact period. It is only reasonable that the wife gives up her arrangements if the husband has given up work commitments.
There are machinery orders consistent with the wife’s proposals. She will be ordered to bring the children to contact until they are able to travel as unaccompanied minors. The costs and effort associated with contact on the south coast will be at her expense.
The orders will enable the husband to exercise contact one weekend in four in Tweed Heads or thereabouts at his expense. Should he wish it the wife has offered him the use of her car throughout the weekend. He can probably afford to have the children travel to Sydney on these weekends. Should he prefer to have contact at home in lieu of monthly contact on the north coast, provided he meets the costs of the children’s airfares she will be required to make the children available in Sydney. This order operates from the time the children are eligible to travel as unaccompanied minors and Gemma in particular is old enough to travel to Sydney twice a month.
The orders will be effective from 20 January 2005. This gives the children and their father another two months of contact in accordance with the orders made of 20 January 2004, supplemented formally by an order for Wednesday afternoon contact. There is no compelling need for the wife to depart with the children prior to 20 January 2005. Leaving with the children in late January 2005 will still give the wife sufficient time to organise Charles' school enrolment. Of course the wife can make appropriate arrangements whilst the children are with their father, she does not actually need the children with her for the whole of the time during the school holidays in order to get school organised.
For these reasons I make the orders set out at the start of this judgment.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 17 December 2004