Kael and Cabello

FAMILY COURT OF AUSTRALIA

KAEL & CABELLO

[2018] FamCA 96

FAMILY LAW – CHILDREN – With whom a child lives – International Relocation – Where mother seeks to relocate the child to New Zealand – Where father opposes the relocation – Allegations of violence – Where mother’s parenting capacity will diminish if relocation is not permitted – Where it would be in the child’s best interest to permit relocation – Relocation permitted – Where order for equal shared parental responsibility in the child’s best interest – Where orders made for child to live with the mother and spend significant and substantial time with the father.

Family Law Act 1975 (Cth) ss 60CC

A v A: Relocation Approach (2000) FLC 93-035

APPLICANT:

Ms Kael

RESPONDENT:

Mr Cabello

FILE NUMBER:

SYC

7954

2016

DATE DELIVERED:

22 January 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

19 and 22 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Schonnell

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr S Schonnell

SOLICITOR FOR THE RESPONDENT:

Croker Edwards

Orders

All previous parenting Orders in relation to B born in 2012 (‘the child’) be and are discharged.
The child shall live with Ms Kael (‘the mother’) except as otherwise provided for in these Orders.
The mother and Mr Cabello (‘the father’) have equal shared parental responsibility for making decisions about the long-term issues in relation to the child.
The mother be permitted to relocate the child’s place of residence from the Sydney Metropolitan Area to City C, New Zealand. Such change of residence not to occur less than two (2) weeks from the date of this order and the mother shall notify the father in writing or by electronic means of the date of travel as soon as is practicable and at least seven (7) days in advance of departure to New Zealand.
The child shall spend time with the father from the date of the making of these Orders until the date upon which the mother and the child relocate to New Zealand as follows: -
5.1.From the conclusion of day care or 3.30pm until 6.30pm on Tuesday and each alternate week thereafter;
5.2.From the conclusion of day care on Friday or 3:30pm until the commencement of day care the following Monday or 9:00am;
5.3.At such other times as agreed between the parties in writing.
From the date the child and the mother relocate to New Zealand:-
6.1.During school terms with such time to take place in New Zealand except when the child is in Sydney, and in New Zealand each month:
6.1.1.For one weekend each month commencing two (2) hours after the father’s scheduled arrival in New Zealand and concluding four (4) hours prior to the father’s departure from New Zealand as agreed between the parties and failing agreement for the first weekend of each month; and
6.1.2.During school terms with such time to take place in Sydney for one weekend each term commencing two (2) hours after the scheduled arrival of the child to Australia and concluding four (4) hours prior to the child’s departure from Australia as agreed between the parties and failing agreement such time to occur on the weekend that there is a public holiday in New Zealand falls on the Friday or Monday (with the mother to give the father twenty eight (28) days’ notice of in the event of a “long” weekend) or otherwise, in the middle weekend of the school term.
6.2.In Australia for the first half of the school holidays falling at the end of Term 1 and Term 3 as agreed between the parties and failing agreement, for the first half of the school holiday period in 2018 and each alternate year thereafter and for the second half of the school holiday period in 2019 and each alternate year;
6.3.In Australia for the whole of the school holiday period falling at the conclusion of Term 2;
6.4.In Australia during the Christmas/January school holiday periods, for the first three (3) weeks during the school holiday period in 2019 and each alternate year thereafter and for the last three (3) weeks of the school holiday period commencing 2020 and each alternate year thereafter (with the child to returned three (3) days before school commences);
6.5.the school holiday periods shall be determined as the school holidays published by New Zealand Public School Board of Education and shall commence on the day after the last day of the school term and conclude at the day before commencement of the following school term (except as to the Christmas/New Year breaks);
6.6.At other times when the father travels to New Zealand upon giving the mother twenty (21) days’ written notice of his intention to be in New Zealand and spend time with the child; and
6.7.At such other times as agreed between the parties.

Telephone contact

The mother shall facilitate the child communicating with the father via facetime, skype and/or telephone when the child is in the mother’s care each Monday, Wednesday and Saturday between 5:30pm until 6:00pm (New Zealand time) or at such other times as agreed between the parties, with the father to initiate the calls.
The father shall facilitate the child communicating with the mother via facetime, skype and/or telephone when he is in the father’s care on any occasion of overnight time, with such contact to occur between 5:30pm and 6:00pm (such time being determined by the place at which the child is at that time) or such other times as agreed between the parties, with the mother to initiate the calls.

Changeover

In the event that the child is spending time with the father in Australia, the father will ensure that the child is delivered to Sydney International Airport in sufficient time to meet the departure time of the child’s flight to New Zealand and the father will collect the child from Sydney International Airport upon his arrival to Australia.
In the event that the child is spending time with the father in New Zealand, the child shall be exchanged between the parties at the mother’s residence on all occasions other than when the child is collected from and/or returned to day care/school or at such other mutual location as may be agreed between the parties in writing.

Information sharing

The mother shall authorise the principal and staff of the child’s preschool/day-care centre or school to supply the father with copies of all reports, photographs, counsellor’s notes, memos, newsletters, invitations, notices and any other information in relation to the child that the father may request from preschool/day-care or school from time to time.
Each party shall notify the other immediately of any serious injury or illness suffered by the child whilst with that party.
Each party must notify the other not more than twenty four (24) hours’ after they have changed their residential address and/or landline or mobile telephone number and email addresses.

Other

The mother will be responsible for meeting all costs associated with the child’s air travel to and from New Zealand or to and from Australia pursuant to these Orders, as well as any costs associated with her own travel to facilitate these Orders.
The father will be responsible for meeting all costs associated with his own travel to New Zealand to spend time with the child pursuant to these Orders, as well as any costs associated with his own travel to facilitate these Orders.
Each of the parties will do all things necessary and sign all documents (including any passport application or passport renewal form) to ensure that the child has a valid passport at all times and the mother shall be responsible for meeting the passport application or renewal costs.
Both parties are permitted to take and send the child from the Commonwealth of Australia and from New Zealand for the purposes of overseas travel and holidays during the time that the child is in their respective care provided that:-
17.1.the party proposing overseas travel gives to the other party, at least four (4) weeks' in advance of the proposed travel, written details of the proposed departure and arrival dates to and from each country to which it is intended travel will occur (except this Order does not apply if it relates to the child travelling to and from New Zealand pursuant to these Orders);
17.2.not less than one (1) week in advance of the proposed travel, the party taking or sending the child outside of the Commonwealth of Australia or New Zealand must provide to the other party written notice of the contact telephone numbers and addresses of all places where the child will be staying overnight when outside of the Commonwealth of Australia or New Zealand (except this Order does not apply if it relates to the child travelling to and from New Zealand pursuant to these Orders); and
17.3.the party proposing overseas travel must ensure each child travelling outside of the Commonwealth of Australia or New Zealand is covered by a valid travel insurance policy for the duration of travel outside of Australia or New Zealand, and a copy of such policy shall be provided to the other party not less than one (1) week prior to the proposed travel (except this Order does not apply if it relates to the child travelling to and from New Zealand pursuant to these Orders).
The name of the child, B born … 2012 be removed from the Airport Watch List, otherwise known as the PACE Alert System forthwith.
The mother and father are each restrained from taking or being affected by illegal drugs and from being affected by alcohol (that is above 0.05 grams of alcohol in every 100 millilitres of blood) when the child is in their care or supervision.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding applications in a case be dismissed except for any application for costs, any costs application to be made in accordance with the Rules of the court.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same after the expiry of the appeal period.
Leave is granted to the parties to apply in relation to any mechanical issues in relation to these orders, such leave to operate three months from the date of this order.

IT IS DIRECTED

The ex tempore reasons be taken out and placed on the court file.

IT IS NOTED

The parties have agreed that the child will spend time with the father over the Australia Day long weekend commencing 26 January 2018.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage Senior Counsel and Counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kael & Cabello has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7954 of 2016

Ms Kael

Applicant

And

Ms Cabello

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I intend to deliver ex tempore reasons today. For the sake of the parties, I can let them know that over the weekend I spent significant time in chambers and I reread each of your affidavits, I reread the family report and the other material.
Ms Kael (‘the mother’) and Mr Cabello (‘the father’) are engaged in parenting proceedings relating to their son B (‘the child’) who was born in 2012 and is now aged five.
The mother has formed another relationship and her partner Mr D lives and works in New Zealand. The mother’s case is that she is going to live in New Zealand and wants to continue to be the primary carer of the child, but in that country. The father lives and works in Australia. He does not believe that the mother will leave Australia without the child in her care. His case is that the mother ought not to be permitted to relocate the primary residence of the child to New Zealand and that substantially the current arrangements remain in place; that is his number one position.
His number two position is if the Court accepts that the mother is likely to move, then the child should remain in Australia in his primary care with the assistance of his new partner. His third and least preferred option is that sought by the mother.
Each of the parties prepared and submitted case outlines to which I have had regard. Counsel for the father prepared submissions in relation to the relevant s 60CC[1] factors which were tendered in evidence, although are simply evidence of the submission of which I have read.
[1] Family Law Act 1975 (Cth).
The mother is aged 37. Her employment allows her to work in either Australia or New Zealand. She has a substantial income. She was born in the United Kingdom and is a citizen of that country. She does not have Australian citizenship. She has repartnered with Mr D who is, I understand, aged 34 years. He lives in New Zealand and has two children to whom he referred in his affidavit.
The father is aged 37. He works in Sydney. He is a citizen of Country K and is not a citizen of Australia. He is in good health. He has repartnered with Ms L who is aged 29. The parties have lived in Australia in recent years, at least in the case of the mother, since about January 2012. It was submitted that neither party have a deep connection with Australia; clearly they do at some levels in that the father is in a committed relationship in Australia and they have a child who lives in Australia. I find that both of the parties are in a committed relationship with each of their present partners.
The mother moved to the Country K in 2003, met the father, they commenced cohabitation and married in 2005. I made an order dissolving that marriage last Friday. The parties relocated to the United Kingdom in 2005 and remained in the United Kingdom until 2010. Whilst in the United Kingdom, they travelled extensively. The mother asserts that she was the subject of physical and emotional abuse over that period of time. The father denies that that occurred. There is some objective evidence that some violence occurred, however despite this both parties seek equal shared parental responsibility.
Each of the parties seeks that the child spends unsupervised time with the other parent. Each of the parties, in essence, are assuring the Court that whilst they may have had a terrible relationship as between themselves, each of them has the capacity to look after the child and not put the child at risk. Hence I do not intend to make any findings either positively or negatively in relation to questions of family violence for a number of reasons: first, it will not do any good in terms of the parenting of this child; second, it may add to the conflict; and, finally, it is not necessary or relevant in the determination that I need to make.
In August or September 2011 two extraordinary things happened in the mother’s life: she arranged to take up employment in Australia and took steps to move to the Middle East while she was waiting for her visa to come through, and she fell pregnant with a child. The parties’ relationship, it seems, was not in the best of shape at that time, but with the pregnancy, the parties’ relationship became stronger and by 2012, both the parties were eventually residing together in Australia. The mother had employment. The father did not have employment for a period of about nine months and then obtained casual employment until about February 2015, shortly before the parties separated in April or May 2015.
On the evidence, I am satisfied that the mother was the primary carer of the child prior to separation and post-separation. That is not in any way to derogate from the father’s connection with the child, but it was not to the extent of the mother’s and I rely on the evidence of the single expert in that respect. It was submitted that on separation the mother made spending time with the child difficult. In the world in which I occupy and having regard to the times that the child was made available to the father, in accordance with the orders and in accordance with arrangements and convenience of both parties, the mother has not, in my view, intended to unreasonably inhibit the time that the child has spent with the father, but quite the contrary.
The mother has, and this appears uncontentious, enabled the child to have significant telephone or FaceTime communication with the father. The father complains that, at present, the calls are short and cursory. The mother’s evidence is that sometimes the calls are very short and sometimes they are very long. Given the assessment I will be making of the evidence later on, I prefer on balance the evidence of the mother. As I said, Mr D has two children aged 11 and seven and has flexible arrangements in terms of the time the children will spend with him.
The mother and Mr D commenced their relationship in February or March 2016. They lived together for about slightly under a year until January 2017 when he was required through work to return to City C, in New Zealand. Since that time, the parties have been enriching airlines by travelling backwards and forward across the Tasman Sea to spend time with each other. The mother says that in her employment she can move to City C and that she could work substantially at home, although there will be some travel and she has given evidence as to the extent of that travel. There is some dispute as to the extent of that travel in the past and the likely travel in the future, but for the reasons which I will articulate later, I preferred the evidence of the mother.
These proceedings were commenced 1 December 2016 and the hearing was expedited to this time. In these reasons any statement of fact is be regarded as a finding of fact unless the contrary is clear from the content.

THE EVIDENCE

The mother relied on:-
(a)her amended initiating application filed 18 December 2017which set out the orders that she sought;
(b)her affidavit filed 18 December 2017,
(c)the affidavit of Mr D filed 19 December 2017; and
(d)the report of Mr M (‘the single expert’) dated 30 November 2017 (‘the single expert report’) .
I will interpose at this stage that I am calling partner’s names by their initials because this judgment will be anonymised and I will be using ‘the mother’ and ‘the father’ and ‘the child’ for that same reason, so that names do not become caught up somewhere in the reasons. So it does not imply any discourtesy to any of the parties or their partners or indeed the child.
The father relied on:-
(a)his response filed 6 January 2017;
(b)his affidavit filed 21 December 2017;
(c)an affidavit of Ms L filed 20 December 2017
(d)his parenting questionnaire filed 2 November 2017;
(e)the Child-Responsive Memorandum filed 14 June 2017; and
(f)and the single expert report.

THE EXHIBITS

I asked that each of the case outlines be tendered and I have treated those as the submissions, except in terms of where there is consistency as to birthdays and the like. The single expert report was Exhibit E3.
The mother’s application to enrol the child in a New South Wales government school was Exhibit E4; the enrolment of the child in New Zealand was Exhibit E5. The report from Mr N, being the Child-Responsive Memorandum, was Exhibit E9. The list of trips undertaken by the mother was Exhibit E6. The family photos were Exhibit E7 and I have had regard to those and for the reasons that I will articulate elsewhere, I accept that they were the photographs provided to the child for that preschool event. An email was Exhibit E10; another set of texts or emails was Exhibit E11; another set, Exhibit E12; another set, E13. The exhibits to the mother’s affidavit were Exhibit E8 and there are a series of further texts or emails which were tendered. An email dated 17 October 2016 was Exhibit E17.

During the course of these proceedings and tellingly, I might say, on 14 December, the day before the mother was due to fly out to New Zealand and a date of which the father was very aware, having regard to the communications between them over the preschool graduation. A request was made that the mother undertakes drug testing. That request and a clear drug test result was Exhibit 18 and I have had regard to that. The Gmail conversation of August 2011 was Exhibit E19. The submissions by the father as to the relevant s 60CC considerations are Exhibit E20 and the aide-mémoire was Exhibit E21.

THE LAW

The provisions of the Act that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The terminology of the section is thus that the court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(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;
(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);
(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;
(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;
(d)the likely effect of any changes in the child's circumstances, 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;
(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;
(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;
(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;
(h)      if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(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;
(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;
(m)     any other fact or circumstance that the court thinks is relevant.

THE LAW AS TO RELOCATION

The principles emanating from B v B Family Law Reform Act 1995 (1997) FLC 92-755, A v A: Relocation Approach (2000) FLC 93-035 and the High Court in U v U (2002) FLC 93-112 are that relocation cases are not a special category of parenting cases and the same statutory path ought to be followed. Further in A v A: Relocation Approach (supra) the Full Court said the following matters need to be considered when dealing with such applications as set out in paragraph above:-
·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 s 60B and s 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:
1.    A court will identify the relevant competing proposals;
2.    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 (1997) FLC ¶92-755 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.
3.    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.
This outline, of course, must be considered in reference back to the best interests of the child.
A Court cannot require the applicant for child’s relocation to demonstrate any compelling reasons. It is necessary for the 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 residence. 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 interest. Of course, I am bound to follow the necessary legislative pathway, such as it is, consider the objects and principles under s 60B and consider the matters under s 60B and consider the matters under s 68F(2) of the Act that arise in the particular case.
In doing so I am conscious and will set out that no party bears an onus. I have to have regard to the importance of a party’s right to freedom of movement and, of course, any outline and any principles must be considered in reference to the best interests of the child. His Honour Watts J in East & Loewe (2015) FamCA 517 referred to the Full Court decision in Tyler & Barker (2007) 37 Family Law Reports 461 which describes the mother’s happiness and contentment as a significant matter because it impacts on the child’s happiness and contentment.
I agree and it can be that this has significant impact on the outcome of a proceeding. The mother gave evidence most of the day on Friday in terms of her affidavit, although it was interrupted for a short while by the evidence of the single expert. It is significant and a factor to which I have had regard that she speaks Spanish, which is, as I understand it, the first language of the father. There is evidence that after separation the mother assisted the father financially from time-to-time. There was, and senior counsel for the father raised some criticism, it seems, of the mother in relation to the moves.
Given that each of the parties has moved, effectively, three times, I give those moves little or no weight. I give little or no weight to the circumstances of the parties prior to the birth of the child. They were a young couple making the most of life and in any relationship there is an amount of give and take. Sometimes partners do things that others do not like and vice versa. That is the nature of relationships and the fact that they travel extensively, in my view, is of little weight in this case.
The parties moved a few times when they were together in Australia, and that is of little weight. There was evidence of the mother’s travel overseas of which I have had regard. There was some questioning of the mother that they had not accumulated property. The mother has earned a strong salary, paid high rent and at least, for the first nine months with the assistance of saving, supported or helped support the father. The mother was cross-examined in relation to her thinking regarding the relocation to New Zealand.
The mother clearly struggled with this and formed different views, no doubt as her feelings changed and as the relationship grew and deepened with her partner. I make no criticism of her, but I have had regard to not the changing of her mind, but the development of her thinking in that regard. The mother gave evidence of her commitment to her partner and that is significant in terms of the efforts she has put in place to maintain her relationship with him. At times the mother made frank admissions against interests, such as with the preschool enrolment and the fault on both sides in terms of the language and the exchange of emails and other material.
As the cross-examination continued I began to have concerns about her evidence, particularly in terms of what happened last year and some of the events regarding making the child available to the father and the extracurricular activities. It was not helped, I might add, by the correspondence that passed between the solicitors which was at times very formal and at times less than calming. However, later evidence, particularly evidence given today, puts some of that into context. Assessing the mother’s evidence, she gave evidence from her own subjective point of view and it was coloured in many respects by her desire to move to New Zealand to live with her partner.
However, I am satisfied that she endeavoured where possible to give evidence frankly and carefully. No evidence in a Court such as this can ever be perfect. Evidence was given by Mr D in terms of his affidavit. He was clearly unhappy with the process in this matter and made that unhappiness clear to the Court when he gave evidence. I am satisfied that he endeavoured, however, to give frank evidence, although again, that is coloured by his own subjective views in relation to these events. He frankly answered about the extent of travel and tried carefully to give answers about the interaction of the families, including acknowledgement that there would likely be some issues which the parties will need to address with the merging of these families. I treat him as substantially a reliable witness.

The father gave evidence in terms of his affidavit and was cross-examined in relation to the orders that he sought. I do not accept the submissions of senior counsel for the father as to the meaning I should take from him adopting different views in respect of the approach by the mother and by him on the outcome. Inevitably these are orders are drafted by lawyers and sometimes they do not always reflect the views of the parties. The only order I was troubled about was the one restraining the mother from moving within City C and I will deal with that later.
The father gave evidence about the ease of FaceTime which is at some levels different to that which he provided in his affidavit about the difficulties of discussions of FaceTime communication with the child. He gave evidence that the child was not aware of the parents arguing and that is contrary to the clear statement made by the child to the single expert in the Report. The father said he did not believe that the child said it. I do not believe the father in terms of that evidence.
The father gave evidence that he thought that things would settle down once the mother was effectively required to stay in Australia, but earlier on he said he feared revenge when he was speaking to the single expert. In some of his evidence, such as regarding the job application in Europe and the child support payments, he either declined to answer or obfuscated. Similarly, his evidence regarding his time at work, travelling and the like had an element of reconstruction. He works full time. He travels about 25 minutes each way between home and work. I am not convinced that his job is as flexible as he says. He has little savings, if any, and modest debt in terms of legal fees and credit card debt. What was particularly troublesome for me was the level of child support. He gave evidence that he is currently earning some $8,000 per month. He pays half the rent and yet pays about $35 per month for the support of this child. There were ways that he could have provided money to the mother or for the child. He has not done so.
There was certainly evidence that he sought support from the mother both in funding and in practical needs at separation and I can understand that as he had only just taken on a new job, although I scratch my head a little bit about why those items such as juice and food were not made available by the father for the child. But his failure to contribute by way of child support in recent times is a factor. If that is the case, it must raise some doubts about whether he has the financial capacity to care for the child. However, for the purpose of this proceeding, I have treated it that he does have the financial capacity for no other reason than the amount of his income and the support he gets from his partner.
The father had been critical of the mother moving to Suburb J which was some distance. However, this must be seen in the context that he had considered moving to the sane area some months before. He complained about the mother changing the child’s day care in circumstances where she was paying $162 a day and the move reduced that to $110 a day, a saving in excess of $50 a day which amounted to around $10,000 a year. The father was concerned about the arrangements that were put in place in July 2016. Given the evidence, I am satisfied that the mother was far more child-focused to put in place arrangements which would meet the genuine needs of the child and not expose the child to the anxiety and uncertainty of which there was clear evidence by both parties.
One of the problems with the father’s evidence was that he always pointed to the mother to blame. I do not accept that he genuinely respects her role and the efforts she has taken in terms of parenting this child. His evidence in relation to the drugs was at least an exaggeration and perhaps a gross exaggeration. I conclude this after reading the correspondence and hearing his evidence, including reading the electronic exchanges in the affidavits between the parties and hearing some of the words that they use to each other for which neither should take any credit. The father denies that he has an anger management problem. I am not a psychologist, but there is certainly anger there, and perhaps anger from both sides from time-to-time.
The mother had arranged to travel overseas and needed a court order. This was granted and she booked air tickets. The child’s preschool was having a ‘graduation’ on the day the mother and child were to travel. The father was demanding the child attend. The mother arranged for the preschool to have an earlier graduation for children who would not otherwise be there. It was at about the same time and in this context that the father sought that the mother undertakes a drug test. The father’s approach in terms of requiring the mother to undertake the drug at that time was mischievous. I understand these things are important or seen to be important, but the mother had put an enormous effort into going away at that time. The father was clearly aware of it, and he yet he persisted. It was only the mother in a child-focused way who resolved that problem. In many ways he would not take no for an answer and that is exhibited in a number of areas throughout his evidence. So what, then, do I make of his evidence? Well, sometimes he obfuscated, particularly in relation to how much money he paid in child support, some difficult questions in relation to some emails and other areas.
He prevaricated, dissembled and reconstructed evidence. I can only go to the questions of Europe, not getting angry, cocaine, and those other matters to which I referred. There was some evidence where he was clearly, in my view, mendacious. He was not an impressive witness.
Ms L gave evidence in accordance with her affidavit. She is committed to the father and supportive of him. She was not in any way challenged in cross-examination and her evidence is clear. However, the amount of assistance she can offer must be questioned, given that she works some 50 hours a week on average. She is starting up a business and it looks as though it is successful at this stage because they are looking at employing people.
Her heart is in the right place and she will help to the extent that she can, emotionally, psychologically and financially. She is a fairly direct witness and made it clear that the father pays half his rent, half the electricity and half the telephone and other expenses. She clearly cares for the child and speaks fondly of him. I regard her evidence as reliable.

SECTION 60CC FACTORS

In terms of the cost of airfares, I am satisfied that the mother can reasonably meet those as she travels.
I find that on the evidence and given the history of the mother and the matters to which I have referred earlier, that the mother is, more likely than not, to travel to City C in the absence of the child if relocation of the child is not permitted. That is the very difficult evidence of the mother, but I accept that that is her evidence and that she was truthful in that regard.
I accept the evaluation of the single expert that the child is primarily and strongly attached to the mother and I note that separation from the mother is likely to trigger deep feelings of resentment, of rejection and abandonment in the child. I accept his assessment that the mother would be happier if she moved to New Zealand and I have made that assessment having heard the evidence of the mother and Mr D. I accept the evidence that the mother, in a greater level that the father, recognised the importance of the father’s relationship with the child and the child’s relationship with the father. I am not sure that that is entirely reciprocated.
I accept that the father’s relationship with the child will likely be weakened by the move to New Zealand, notwithstanding Skype, FaceTime and regular contact. This this will also be notwithstanding the regular visits to and from New Zealand and the mother’s agreement that she would pay a significant amount of airfares. I make no findings as to the amount of those airfares, although it is likely to be quite expensive, but well within the means of the mother. This is a particularly unusual case because normally I focus all of my time on s 60CC(2)(a) and (b) of the Act which are the cornerstones of family law in this Court, that is, the benefit of the child having a meaningful relationship with one or other parent and that risks of abuse or neglect or family violence that a child may sustain.
In this case, there is no issue that the child should have a meaningful relationship with both parents. Both parents submit that, and both parents join in that. It is not a factor to which I need to have regard. How that is achieved, of course, is a significant matter for me. Each of these parties has been involved in a long and difficult relationship, and I think our system does not help either. They have thrown an awful lot of mud at each other and no doubt some of it will stick, but it was not a significant factor in terms of the determination that I have to make.
Similarly, with s 60CC(3)(a) of the Act, I accept that the views expressed by the child are not relevant and no weight should be given to them. As I said, it is more likely that this child would like the parents to reconcile and live happily ever after because that is generally the view of five year old children who are struggling with their parents’ relationship break up.
I accept that the child has a close relationship with each of the parents, although I note the comments of the single expert in terms of the relationship between the child and the mother. I accept that the child has a warm relationship with each of the parents’ partners. Probably a closer relationship with the father’s partner, given the regular time the child would have spent with her than the mother’s partner, given the limited time that they spent together, but there is certainly warmth from both the partners to the child.
I have made comment the parents have endeavoured to make decisions about issues relating to the child. They have not always succeeded. The mother conceded that the arrangements regarding the change of child care could have been managed better and each of their decisions seems to be fraught.
I accept the submissions made by senior counsel for the mother as to the conflict that exists in terms of the communication between the parties. It is probably more the communication than the decision-making. They seem to get there but they take the most extraordinarily difficult and convoluted routes to get to a decision.
I do not accept that the father has fulfilled his obligation to properly maintain the child. I accept that the mother has carried that task. Given the finding about the mother and her views, the only two options I have readily available to me are for the child to reside with the father in Australia or the mother in New Zealand and that is likely to have the effects to which I have referred earlier and to which the single expert has referred in his report.
There will be practical difficulties in terms of travel, in terms of cost and in terms of things such as timing of telephone calls, whether it is daylight savings or not daylight savings in New Zealand.
The mother has a demonstrated capacity to care for and focus on the needs of the child. The father has the capacity, and although I am not sure that it is at the same level as that of the mother. In terms of the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents, each of them have endeavoured to become involved and remain involved in the care of the child. The mother has, in many regards, taken the lead role in that respect and I talk about the enrolment at schools, enrolment at child care and the like.
There is family violence and I have had regard to it to the extent that it is relevant, given the sensible positions of the parties. I have identified the relevant competing proposals. I have considered the father’s proposal that the child remain here, in the hope that the mother will change her mind. I am not satisfied that that is a risk that ought to be taken with this child and I do not accept that the mother would remain as sanguine as the father’s evidence would conclude.
The mother is likely, given the evidence of her partner, to lose that relationship and there is likely to be great unhappiness and continued conflict between the parties. Even if that were a viable proposition, I do not accept it. I have considered all of the relevant factors insofar as they bear on the child’s best interests and I adopt those submitted by senior counsel for the mother towards the end of his submissions. The ultimate issue in this case is what is in the best interests of the child. On my assessment, the best interests of this child are to remain in the primary care of his mother.
It was also a consideration that I had as to the importance of a party’s right to freedom of movement in the context of the best interests of the child. There are no perfect outcomes in relocation cases. There is no middle ground. There is either one or the other.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 22 January 2018.

Associate:

Date: 20 February 2018

[2018] FamCA 96

22 January 2018

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