JUDD & COTTON (No.2)

[2018] FCCA 3666

FEDERAL CIRCUIT COURT OF AUSTRALIA

JUDD & COTTON (No.2) [2018] FCCA 3666

Catchwords:
FAMILY LAW – Parenting Orders – proposed relocation of child’s residence such that the child’s time with the father would be reduced – application dismissed.

Legislation:

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

Evidence Act 1995, s.140

Cases cited:

AMS and AIF (1999) 199 CLR 160; 24 Fam LR 756

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

MRR v GR [2010] HCA 4
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755;
Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
Taylor v Barker (2008) 37 Fam LR 461

Applicant: MS JUDD

Respondent: MR COTTON

File Number: MLC 10344 of 2012

Judgment of: Judge Lapthorn

Hearing dates: 6 and 7 August 2018

Date of Last Submission: 7 August 2018

Delivered at: Brisbane

Delivered on: 14 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Mellas

Solicitors for the Applicant: Berry Family Law

Counsel for the Respondent: Mr Puckey

Solicitors for the Respondent: Taussig Cherrie Fildes

ORDERS

1. That the Initiating Application filed 15 November 2017 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Judd & Cotton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10344 of 2012

MS JUDD

Applicant

And

MR COTTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of nine year old [X] have been unable to agree as to her future parenting arrangements.  [X]’s mother, Ms Judd, has brought an application seeking orders that would permit her to relocate with the child from Melbourne to Town A, a distance of 215 kilometres.  [X]’s father, Mr Cotton, sought that the mother’s application be dismissed.  The parties have had a protracted history of ongoing dispute involving two previous proceedings.

2. Throughout these reasons I will refer to Ms Judd as the mother; Mr Cotton as the father; and [X] as the child.  I mean no disrespect in doing so.

3. The mother is 41 years old having been born on [date] 1977.  The father was born [date] 1973 and is 45 years of age.  The parties commenced living together in 2004 and married on [date] 2006.  The child was born [date] 2009 and is currently 9 years old.  The parties separated on a final basis in March 2012 and divorced on 6 April 2014.

4. The mother is a self-employed [occupation omitted] and is undertaking an [course omitted] on a part time basis.  The father is a self-employed [occupation omitted].  Since separation until December 2017, the mother and child lived with the mother’s parents, however upon the maternal grandfather being diagnosed with Parkinson’s disease, the maternal grandparents sold their Melbourne home and relocated to Town A where the maternal uncle also resides.  The mother and child currently reside in rental accommodation and notwithstanding the change in residence, since separation the child has resided approximately 15 to 20 minutes from either parent. 

Material relied on 

1. In support of her application the mother relied on:

   a)her Initiating Application filed 15 November 2017;

   b)her Notice of Risk filed 15 November 2017;

   c)her affidavits filed:

   i)10 April 2018 and

   ii)16 July 2018;

   d)her financial statement filed 16 July 2018;

   e)her Response to an Application in a Case filed 10 April 2018;

   f)the affidavit of her witnesses filed 15 November 2017 of:

   i)her father, Mr D; and

   ii)her mother, Ms E;

   g)the affidavits of the family report writer, Mr F, filed:

   i)4 July 2016 (“the first report”); and

   ii)12 April 2018 (“the second report”);

   h)the final orders and reasons for judgment of Judge Williams dated 9 September 2016.

2. The father relied on:

   a)his Amended Response filed 23 July 2018;

   b)his Notice of Risk filed 27 November 2017;

   c)his affidavit filed 23 July 2018;

   d)the affidavits of his witnesses filed 23 July 2018:

   i)his mother, Ms G; and

   ii)his sister, Ms H;

   e)the affidavit of the family report writer, Mr F, filed 12 April 2018.

Procedural Background

1. The first proceedings these parties were involved in was commenced by the mother on 13 November 2012.  The parties were able to reach consent regarding the parenting dispute and final orders were made by  Federal Magistrate Hughes (as her Honour then was) on 30 January 2013 which provided for the child, then 3 years old, to live with the mother and spend time with the father in the school terms on a fortnightly cycle.  The first week of that cycle being from the conclusion of school on Thursday to the commencement of school on Monday and the second week being from the conclusion of school on Thursday overnight to the commencement of school on Friday.

2. With respect to school holidays, the child was to spend half of all school term holidays with the father, for the first half in 2013 and each alternate year thereafter and on a week about basis during the summer holidays until 2016 when time over summer would change to the first half being with the father and alternating each year after that.  The final orders also provided for time with the father on special occasions such as birthdays and Father’s Day.

3. The second bout of proceedings was again commenced by the mother on 22 June 2015.  The mother sought to amend the 30 January 2013 orders such that the child’s time with the father in the second week of the fortnightly cycle would conclude at 6.30pm on the Thursday night (rather than before school the next day) as well as amending slightly the holiday start and finish times and continuing the week about arrangement in the summer holidays past 2016.  The mother also sought the child’s name be changed from “Cotton” to “Cotton-Judd”.  The father opposed the name change and sought an equal shared care arrangement on a week about basis. In 2016 they endured a three day hearing and orders were made on 9 September 2016 by her Honour Judge Williams.

4. The orders made on 9 September 2016 provide for the child to live with the mother and spend five nights a fortnight with the father, being Thursday to Monday in one week and overnight Thursday in the other week.  The orders also provide for the child to spend half the school holidays with each parent with the father’s time in term two holidays and when applicable at the end of the December/January holidays concluding at 9.00am on the day school resumes. 

5. The mother, desirous of following her parents to Town A, filed her Initiating Application commencing these proceedings on 15 November 2017.  The father’s Response was filed 27 November 2017.  In that Response, he sought to have the mother’s application dismissed and an interim restraint on her changing the child’s residence and school. The matter came before her Honour Judge Harland on 29 November 2017 and orders were made by consent restraining the mother’s relocation of the child’s residence to Town A and confirming the child would continue to attend her school.  These orders also made provision for the mother to find rental accommodation within 10km of the child’s school and for the father to pay a rental bond and provide a guarantee for the rent for the mother.

6. The father filed an Application in a Case on 2 March 2018 seeking orders permitting the child to accompany him to Queensland for a holiday during the term 3 school holidays.  Although the mother filed a Response seeking the Application in a Case be dismissed, the parties ultimately reached agreement for the father’s travel with the child and orders were made by consent in Chambers on 16 April 2018.

7. To their credit, on the second day of the final hearing in these current proceedings the parties reached consent orders varying the orders made 9 September 2016 in relation to the mid-year school holiday time; the father’s ability to attend the first day of certain school terms and made machinery provisions for selecting the child’s secondary school, keeping the other parent informed of the child’s wellbeing and the other parent having the first option to care for the child if the parent with whom the child is with requires alternative care arrangements.  The only outstanding issues requiring the Court’s determination are the mother’s application to relocate with the child to Town A and any implications to the child’s time with each parent that would flow from that.

Parenting application

1. The court is asked to determine the mother’s proposed relocation with the child to Town A where the mother’s brother resides and her parents have relocated to.  The father would like for the child to remain living in Melbourne with the current orders, as they now are, to remain unchanged.  

2. If the mother was permitted to relocate to Town A, she proposed that the child live with her and spend time with the father each alternate weekend from 6pm Friday to 6pm Sunday and for three and a half hours (or five hours if a non-school day) on the child’s and the father’s birthday; the Father’s Day weekend; for 24 hours commencing 3.00pm Christmas Day and for three days over Easter and other standard parenting orders.

3. The mother informed the court that in the event her application for the child’s relocation is not successful she would remain in Melbourne.  The father informed the court that he would not move to or near Town A.

The Evidence

1. In determining this matter, I have had regard to all of the written evidence referred to above along with the oral evidence given.  In order to avoid repetition and limit the length of this judgment, I will not repeat the evidence of the parties but refer to the evidence that is necessary for me to determine disputed issues and carry out my assessments in accordance with the legislative framework. Therefore, throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.  In determining disputed questions of fact, the court is required to assess the evidence on the balance of probabilities.[1] 

   [1] S.140 Evidence Act 1995

2. Both parents gave oral evidence and were cross-examined.  I found them to be honest and forthright witnesses of credit.  Where their evidence differed, I am satisfied their recollections and perceptions have been clouded by the ongoing inability to communicate and the frustration of having to resort to litigation.

Family Report

1. The parties engaged the services of family report writer Mr F who is a clinical psychologist in private practice.  His report was filed on 12 April 2018.  Mr F also prepared a report filed 4 July 2016 in the earlier proceedings.  Both reports were relied upon in these proceedings. 

2. The first report, gives an insight into the history of the parents as well as providing a helpful gauge on the child’s development.  The child was described as “unequivocally positive” in her presentation and, at that time, was unaware of the conflict that existed between her parents.  She was then, as she continues to be now, psychologically robust, full of confidence and maintains a strong sense of belonging in both her mother’s and father’s family.  The second report prepared for these proceedings describes the child in much the same way; confident, engaging and articulate.  She maintains her strong sense of family and elevated her parents well above and beyond all other considerations.  Alarmingly, however, the report reveals the child is fully aware of the tension between her parents explaining that she knows her mother does not want her to live with her father and that this ongoing tension makes her sad.

3. The report writer was cross-examined by counsel for each party.  He did not support the mother relocating the child to Town A.  It was his view that the child’s interests would be better served living primarily with her mother in close proximity to her father so that she could spend regular time with him.  He was also of the view that by living in the current locale the child would have the benefit of being able to maintain regular relationship opportunities with the extended paternal family.  The report writer accepted the child has a relationship with the maternal grandparents and would miss them if she lived in Melbourne and they remained in Town A, however, he asserted that the child’s relationship with her father was of more importance to her.

4. I will refer further in this judgment to the report writer’s evidence and reports but indicate at this stage that I accept his evidence and his professional opinion expressed therein.

Legal Principles

1. Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[2] and must consider the best interests of the child as the paramount consideration.[3] Whilst that is the paramount consideration it is not the only consideration.  In AMS and AIF his Honour Justice Kirby held: [4]

   [144] ……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.

   [2] S.60B

   [3] S.60CA

   [4] (1999) 199 CLR 160 at page 207; 24 Fam LR 756 at page 792

2. The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[5] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:

   a)Children have a right to know and be cared for by both their parents;

   b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture.

   [5] S.60B lists the objects and principles for Pt VII.

3. In determining what is in a child’s best interests the court must consider the matters set out in s.60CC. 

4. The legislative framework, which must be followed in all parenting cases,[6] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[7]  This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[8]

   [6] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [7] S.61DA

   [8] S.61DA(2) & (4)

5. In the event that the court orders the parties to have equal shared parental responsibility, the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents.  In determining this issue, the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[9]  If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable, then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[10]

   [9] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

   [10] S.65DAA(2)(c) & (d)

6. This legislative approach must be followed in all parenting cases.[11]  This particular case has as one of its elements the issue of relocation.  Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others.  The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[12]  In Taylor v Barker[13] their Honours Bryant CJ and Finn J said:

   [53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:  see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458. 

   [11] Goode, ibid

   [12] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343

   [13] (2008) 37 Fam LR 461 at page 475

7. Their Honours went on to say:

   [83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.  Not to approach a case involving a relocation proposal  in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a  case to spend “equal time” or substantial and significant time” with each parent.[14]

   [14] ibid at page 480

Determining the best interests of the children – the s.60CC considerations

1. The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC.  In order to limit duplication I propose to group together a number of these factors.   

The child’s relationships[15]

[15] S.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.

1. It is important to note that both parents clearly love and adore their daughter.  Both parents describe her in an overwhelmingly positive way and commend her for the way she deals with the ongoing conflict between them.  Similarly, and importantly, the child loves and adores both of them.  While the child seems to, unfortunately, fully comprehend the conflict between her parents, she still describes her parents as “loving, caring, kind and friendly”.  She stated to Mr F in the second report that she understands her parents are “not friends” and described her family as “split”.

2. Neither parent alleged the child did not have a good relationship with the other.  The family report writer observed that remarkably even though fully aware of the tensions and discord, and the active dislike of her parents for each other, the child maintains a good relationship with both of them and noted that she was equally dependent and reliant on both parents and that she “identified her parents … with whom she wanted to spend the majority of her time”. 

3. I am satisfied that the child has a close and loving relationship with both parents.  The evidence suggests that the child is also fortunate to have close and loving relationships with her extended family, both maternal and paternal. 

1. The mother and child resided with the maternal grandparents for six years after separation.  This last year the maternal grandparents have been living in Town A.  The mother said that since the grandparents moved the child had been sleeping in her bed, had been teary at home and was “extremely anxious to spend time with her grandparents each alternate weekend, that she misses them, and that she misses their old life”.  It was the mother’s case that the move to Town A would be in the child’s best interests as she would be able to resume living in the family unit as she had known it for the majority of her life.  I have no doubt the child would enjoy and benefit from having her maternal grandparents close by.  However, notwithstanding the mother’s reports of the child being distressed since the maternal grandparents moved away, the mother reported to the report writer that “[X] is progressing extremely well, she is happy, performing well at school, is socially confident, and is highly adaptable”.  The mother was of the view that the child is an extremely adaptable person, and she was confident that the child will adjust to any change in her circumstances easily.

2. The father argued that the child is best served by remaining in her current school with her friends and, most importantly, maintaining a close and consistent relationship with him in a familiar environment.  He claimed that remaining in Melbourne will not remove the child’s relationship with her maternal extended family and, in particular, her maternal grandparents as the mother and child would be free to continue visiting her parents in Town A on the alternate weekends that the child resides with the mother.

3. The father’s evidence was that each fortnight three generations of his family get together for dinner on Thursday evenings and that the child spends a lot of time with the extended paternal family.  The mother recognised this but wanted to assure the court she would accommodate special visits to the paternal family.  When challenged by counsel for the father that this would not happen she was at pains to impress that she would follow through with the offer.  Unfortunately the history of dispute between these parents does not give me hope they will be able to make arrangements outside of court orders.  The necessity of the father having to file an Application in a Case to sort out arrangements for a holiday to Queensland is just one example of the inability of the parents to be flexible in the parenting arrangements.

4. The father viewed the mother’s proposed relocation as another opportunity for her to drive a wedge between the him and child, and he was of the opinion that the mother “does not fully appreciate or value the importance of [X]’s relationship with him.”  The mother deposed that she realised that her proposed relocation would result in a decrease of the child’s time with the father but did not consider that this would jeopardise their relationship as they had spent substantial time together thus far and was of the view that the father could maintain a good relationship with the child with each alternate weekend arrangement and if not extra time could be made up during the school holidays.  Similarly, she stated she was happy to work with the father to ensure that he has increased quality of time with the child to compensate for the relatively small amount of current time with her that would be lost to changed living and schooling arrangements.

5. The report writer stressed, as a general proposition, the importance of both parents being actively involved in a child’s life.  In his first report, Mr F indicated that the social science evidence suggested unequivocally that children who have a good relationship with both parents post separation are more likely to be well adjusted in the long term.  He also said that the social science evidence suggested that children whose fathers have more contact with their children in and around their children’s school lives do better socially, academically and behaviourally, and especially so for girls.  He qualified that evidence somewhat by noting that fathers who are heavily involved in their children’s schooling often correlates with mothers who are equally as involved leading to the conclusion that children who have both parents actively involved do better.

6. This child is extremely fortunate to have benefited from having close and loving relationships from not only her parents but her extended family.  It is not surprising then that she presented to the report writer as “friendly, confident, engaging and articulate.” As I will discuss below she was resolute in wanting to stay in Melbourne so that her time with her father was not reduced.  Notwithstanding that, and consistent with the assessment of both parents, the report writer concluded that the child would adapt to a move to Town A.  He considered her to be “engaging, and adaptive, flexible and accommodating”.  I therefore find that because of her personality and the already established and close relationships with her parents and extended family, this child is sufficiently psychologically robust and resilient to cope with a move contrary to her wishes even though she would be disappointed. 

7. Notwithstanding that finding, when I take into account all of the factors associated with the child’s relationships, and in particular when I consider the effect of a move to Town A in reducing the child’s time with her father and paternal family and my lack of confidence in the ability of the mother to live up to her offer of making special trips to Melbourne to further the child’s time with the paternal family I find that on balance, that the child’s best interests would be served by living in close proximity to each parent.

Risk of harm[16]

[16] S.60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. There are no domestic violence protection orders in place between the parties nor is there any evidence that the child has been subjected to or exposed to abuse, neglect or family violence.  I find that in either household the child would not be at risk of harm.

The child’s views[17]

[17] S.60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

1. In both family reports, the family report writer observed that the child presented as friendly and confident and by the second report she was also forthright, engaging and articulate.  

2. In his first report, the report writer opined at paragraph 25 that the child was “unaware of the background issues pertaining to her parent’s conflict” but two years later “sadly, [X] is fully aware of the tension between her parents and that they are not friends”.

3. The mother alleged that the child told her almost weekly that she missed her maternal grandparents and the dogs and asked to move closer to them. I accept her evidence however, I also accept the evidence of the father that the child has told him she does not want to move.  The family report writer recorded in his second report the following:

   [23]  [X] was as clear as she was resolute.  She told me that she did not want to move to Town A, that she did not want to leave her friends or her school, but most importantly, she did not want to reduce the time spent with her father.

   [25]  Put simply, in hierarchy, [X] elevated her parents well above and beyond all other considerations. … [X] … was clear that whilst she misses her [maternal] grandparents, that this was not to the extent that she would prioritise time with them ahead of time with her father, explaining ‘I would miss my dad the most because he is the closest to me’.

   [26]  … she loves her parents equally, and that she could not really understand why she got to see less of her father who was as important in her life as was her mother.

4. The child’s view of the proposed relocation were summarised by the report writer:

   [27]  [X] was adamant that she wanted to stay in Melbourne, that she wanted to be close to her father, that her relationship with him was at least as important as her relationship with her mother, and when asked what she would do in the event the mother moved to Town A without her, her response was that she would definitely remain in Melbourne and that she would live with her father.

5. While a child’s views are not determinative of an issue, particularly a child as young as nine, the court must consider the child’s maturity and level of understanding when determining the weight to be given to their views.[18]  I consider that the child has a high level of understanding of both the conflict between her parents as well as likely ramifications of a relocation.  She impressed the report writer as an intelligent, adaptive and flexible young girl who was able to articulate her views clearly, identifying her love for her grandparents but still able to recognise her overarching wish to continue spending as much time with her father as possible.

   [18] S.60CC(3)(a).

6. While not being singularly determinative, I propose to give the child’s views significant weight.

Practical difficulties[19]

[19] S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. Practical difficulties arise regardless of where the child will be living.

2. Both parties depose that the time to travel between Town A and the father’s residence is approximately three hours via car or four hours via train.  The mother proposed that changeovers occur at Town B or Town C, which is approximately half way. 

3. The mother proposed that she and the child would travel by train so that the child could complete her homework in transit and in the event of a delay or the train not running, the mother undertook to drive the child to the changeover location. 

4. In the event the mother was permitted to relocate, she proposed that the child spend time with the father each alternate weekend from 6pm Friday to 6pm Sunday and on special occasions.  Those proposed times for the special occasions were:

   a)three and a half hours (or five hours if a non-school day) on the child’s and the father’s birthday;

   b)the Father’s Day weekend from 6pm Friday to 6pm Father’s Day (Sunday);

   c)from 3.00pm Christmas Day till 3.00pm Boxing Day each year; and

   d)if Easter falls outside of school holidays, for three days.

5. The mother also deposed that extra time could be made up during the school holidays as well as allowing the father to take the child to dinner one night a week in Town A.  Both of these propositions raise doubts as to their practicality and ability to be implemented given the history of the parties failure to be flexible and their ongoing poor communication.

6. The distance between Town A and Melbourne would make it difficult for the father to attend mid-week school term events, such as school concerts, after school extra-curricular activities and any weekend sport the child may undertake as she gets older.  Requiring the child’s time with the father to conclude on a Sunday afternoon would reduce his ability to be involved in her schooling life.  Whilst the mother proposed weekly dinners in Town A for the father to spend some extra time with the child, I accept the father’s evidence that this would be impractical given the time it would take for him to travel there and back.

7. The mother deposed that since her parents moved she realised that she does not “have the luxury of getting sick” as she no longer had her family support network in Melbourne.  Clearly, a relocation to Town A would assist her in that regard. The father impressed as being sympathetic to this although he was doubtful as to the ability of the grandparents to assist in the future given their age and health issues.

8. The evidence suggests that the paternal grandparents have been willing to assist in caring for the child should the mother need it but the mother has not taken up this offer.  I am satisfied given the dispute between the families that the mother is unlikely to take up this offer in the future.    

9. The report writer considered the amount of travel proposed to be undertaken by the child under the mother’s proposal would be burdensome and said that this amount of travel is often a source of frustration for children and can be a catalyst for dislike or resistance toward one or both parents.  Mr F highlighted these difficulties particularly so where the parents, as is the case here, have extreme communication difficulties.  He further noted that a combination of removing the father from the day to day and extra-curricular schooling activities, reducing the child’s time him and requiring significant periods of travel could increase the risk of the child developing the issues that are the by-product of many high-conflict parental relationships even though the child appeared to be coping at present.

10. I am satisfied that distance between the two residences and the modest financial circumstances of each of the parties, raises significant obstacles to ensuring the child is able to travel between the two homes.  This would not be an issue if the parties lived in close proximity.  

Parental capacity and responsibility[20]

[20] S.60CC(3)(f): The capacity of: (i)     each of the child’s parents; and (ii)  any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs.

1. Notwithstanding the issue of the inability of the parents to communicate effectively, which I will address below, I am satisfied both parents have the capacity to meet the child’s day to day needs including her emotional needs.  Indeed, the report writer identifies that the child loves and depends on her parents equally and sees them both as the two people who are able to satisfy her needs.

2. The parties have not been able to effectively communicate since separation.  This has impacted their ability to resolve differences and to be flexible in parenting arrangements.

3. As was observed by the family report writer, the inability to communicate directly, and the mother’s requirement that any communication be through her lawyers, has seen the parents “rigidly adhere to the Court Orders, notwithstanding the limitations that these impose.”   It was this difficulty that led to the father filing his Application in a Case on 2 March 2018 to seek orders that would enable him to take the child on a holiday in Queensland.  Although the parties were able to ultimately reach agreement, with their lawyers’ assistance, for the sake of this child they need to be able to put the past behind them and start working together to parent the child. 

4. Although the mother said she would be open to providing the father with increased time with the child, the report writer noted that the “lack of flexibility, common sense and creativity that focuses on [X] and her needs is profound by its absence” and that the parties were unable to see common sense solutions and agree to enable the child to enjoy what is “clearly an extremely important event for her”.  The report writer concluded by saying “I would invite the Court to reflect upon the lack of resolution around the Queensland trip and to transpose these dynamics upon the problems and stresses that the proposed relocation will inevitably present”.  It is this inability to entertain arrangements outside the confines of a strict application of the court orders that brings into significant doubt the mother’s ability to simply “facilitate extra time” for the child with the father over school holidays and at other times.

Background issues[21]

[21] S.60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

1. There are no prevalent issues in this case concerning the maturity, sex, lifestyle and background of the child that have not been discussed above, nor is the child of Aboriginal or Torres Strait Islander descent.

Limiting further proceedings[22]

[22] S.60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. 

1. A significant consideration in making parenting orders is to limit the prospects of further proceedings in the future.  This is the third set of family law proceedings.  Although I detected a weariness in the parties, I also observed a lack of confidence that they will be able to improve their relationship in order to avoid the need for lawyers and court proceedings in the future.  Given my findings as to the parties’ poor communication, an arrangement whereby the parties live some distance apart is likely to see disputes arise in the future.  Having said that, it could equally be observed that living in close proximity has not enabled the parties to avoid conflict.

Any other fact or circumstance that the court thinks is relevant.[23]

[23] S.60CC(3)(m)

1. I accept the mother’s case that she would be in a better financial position by moving to Town A.  She would be able to again live with her parents reducing her financial burden and having her parents available to care for the child on the occasions when either the mother or child are unwell.  In addition, the mother was more confident of obtaining secure permanent part-time employment which would provide her with greater financial security and the benefits that flowed from that.

2. The father gave evidence that he would not be in a position to move to Town A.  He is a [occupation omitted] and runs his own business.  This business undertakes [details of business].  His customer base is predominately in Melbourne and has been built up over 25 years.  He gave evidence of it not being feasible for him to relocate his business to Town A given the smaller population meant he would have limited customer opportunities and he would incur much greater costs servicing his Melbourne customers.  I accept his evidence.

Presumption of Equal Shared Parental Responsibility

1. Fortunately, and to the parties’ credit, they have been able to agree that there should be equal shared parental responsibility for the child.  Notwithstanding my findings as to their poor communication, I am satisfied that it is appropriate and in the best interests of the child for the parents to equally share responsibility for making the significant long term decisions for the child.  I will order accordingly.

Consideration of Equal Time or Substantial and Significant Time

1. Following an order for equal shared parental responsibility, the court is required to consider whether spending equal time with each parent is in best interest of the child and reasonably practicable.[24]

   [24] Family Law Act 1975 (Cth), s. 65DAA(1)(a) - (b).

2. Neither party sought an equal shared care arrangement.  Clearly such an arrangement would not be reasonably practical if the mother lived in Town A and the father in Melbourne.  The father’s proposal would see the child continue to live primarily with the mother and spend substantial and significant time with him.  This, being a continuation of the current arrangement, would provide a sense of stability for the child.  Despite the mother’s desire to provide make up time for the father and the mid-week dinners, her proposal would effectively see a reduction in the child’s time with him such that it could not be said that the time was substantial and significant.

3. When I consider the factors set out above, I have come to the conclusion that it is in the best interests of this child that she spend substantial and significant time with her father.  This would be consistent with her wishes which are deserving of significant weight notwithstanding her young age.  The family report writer also opined that her best interests would be served by living close to her father and continuing to spend the time with him that she has been enjoying now for a couple of years.  Even though the report writer concluded the child was robust enough to cope with living away from her father, he concluded a move to Town A would not be in her best interests.  I accept his opinion.

Conclusion

1. There is no doubt the mother would benefit from a move to live with her parents, not only financially but emotionally and practically as well.  These benefits would flow on to the child.  An order preventing the child’s move would also be very disappointing for the mother which in turn will not help improve her relationship with the father as she will blame him for preventing her from getting on with her life.  All of these things are important and I have also given them considerable weight.  However, when I weigh up the competing proposals and take into account my findings and considerations above, I am satisfied that the father’s proposal is the one that best meets the needs and best interests of this child at this point in her life.  For the reasons set out in this judgment I will dismiss the mother’s application.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date: 14 December 2018

S.60CC(3)(b): The nature of the relationship of the child with: (i)  each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).
S.60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
S.60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i)  either of his or her parents; or (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.S.60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S.60CC(3)(k):  If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order;  ii)  The circumstances in which the order was made; iii)  Any evidence admitted in proceedings for the order; iv)  Any findings made by the court in, or in proceedings for, the order;  v)  Any other relevant matter.S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S.60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parentsS.60CC(3)(h): If the child is an Aboriginal child or Torres Strait Islander child:  (a)  the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and  (b)  the likely impact any proposed parenting order under this Part will have on that right.  See also S.60CC(6).