Kent& Wignal

[2016] FamCA 472

FAMILY COURT OF AUSTRALIA

KENT& WIGNAL [2016] FamCA 472

FAMILY LAW – CHILDREN – RELOCATION –Parenting Orders – Consideration of the application of factors outlined in s 60CC of the Family Law Act 1975 (Cth) – where mother restrained from relocating the child to New Zealand –where mother contends it is not reasonably practical for her to stay in C Town – where mothers financial circumstances would improve if permitted to relocate – where mother has good prospects of obtaining employed in C Town– where there would be an adverse impact on the relationship between child and father if relocation was permitted – where face-to-face and hands-on physical care is in the best interests of the child – where an order for equal shared parental responsibility made – where it is in the best interests of the child to spend substantial and significant time with the father – where child live with the mother until the child reaches the age of 4 – where the child is too young to express any views

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

Banks & Banks [2015] FamCAFC 36
Malcolm & Munro (2011) FLC 93-460
Mauldera & Orbel (2014) FLC 93-602
Morgan & Miles (2007) FLC 93-343
S v Australian Crime Commission (2005) 144 FCR 431
Wacando v The Commonwealth (1981) 148 CLR 1
Zahawi v Rayne [2016] FamCAFC 90

APPLICANT: Mr Kent

RESPONDENT: Ms Wignal

FILE NUMBER: BRC 2067 of 2014

DATE DELIVERED: 13 June 2016

PLACE DELIVERED: Townsville

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 26 and 27 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr James

SOLICITORS FOR THE APPLICANT: Reardon Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITORS FOR THE RESPONDENT: Damien Greer Lawyers

Orders

Parenting and relocation

1. All previous orders and parenting plans be dismissed.

2. The following parenting orders shall apply for the child B born … 2013 (“the child”) unless the mother and father agree to alter all or some of them either temporarily or permanently.

Parental responsibility

1. The parents have equal shared parental responsibility for the child in relation to all major long term issues affecting the child and that the parents shall consult each other and make a genuine effort to come to a joint decision prior to making any decision about such issues, which include but are not limited to the child’s:

   (a)Education and day care arrangements;

   (b)Religious and cultural upbringing;

   (c)Health;

   (d)Name; and

   (e)Relocating the child so that existing parenting arrangements become impracticable.

2. The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)They shall inform the other about the decision to be made;

   (b)They shall consult with each other on terms they agree; and

   (c)They shall make a genuine effort to come to a joint decision.

3. Each parent has the sole responsibility for all decisions concerning the child’s day-to-day care, welfare and development for the time that he is in that parent’s care.

Special occasions

1. Notwithstanding any other order herein, the child shall spend time with the parents on special occasions as follows unless otherwise agreed by the parents in writing:

   (a)Christmas Day:

   (i)     From 5:00pm Christmas Eve until 12:00pm Christmas Day in even numbered years with the father and in odd numbered years with the mother;

   (ii)    From 12:00pm Christmas Day until 5:00pm boxing Day in odd numbered years with the father and even numbered years with the mother.

   (b)On the child’s birthday (with the parent they are not living with on that day):

   (i)     If a school day, then from after school until 6:00pm; and

   (ii)    If a non-school day, then from 1:00pm until 6:00pm with that parent to be responsible to collect and return the child.

   (c)With the father on Father’s Day from 5:30pm Saturday until 5:30pm Sunday;

   (d)With the mother on Mother’s Day from 5:30pm Saturday until 5:30 pm Sunday.

Changeovers

1. Unless otherwise agreed between the parent, changeovers shall occur with the father collecting the child from the mother’s residence at the commencement of his time with the child and the mother collecting the child from the father’s residence at the conclusion of his time with the child.

2. Each parent shall have the necessary car seats for transporting the child and ensure that they comply with the Transport Operations (Passenger Transport) Standard 2010 (Qld) and any legislation amending or replacing same with regard to child restraints when transporting the child.

Exchange of information

1. The mother and father shall:

   (a)Keep the other informed at all times of their postal address, residential address, email address and mobile and landline contact telephone numbers and Skype user names (if applicable) with the other parent to be notified of any changes at least seven day prior to any proposed change.

   (b)Keep the other informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child with such information to be provided to the other parent within 48 hours of any change;

   (c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.  This order authorises any treating medical practitioner to release the child’s medical information to the other parent;

   (d)Immediately (or as soon as practicably possible) notify the other parent in the event that the child requires significant medical or hospital treatment whilst in their care or any other emergency involving the child.

2. The parents authorise, by this order, the day care centre, kindergarten or school attended by the child to give each parent information about the child’s education progress and other notices, payments and related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at the requesting parent’s costs) and that both parents be permitted to deliver/collect the child from any day care, kindergarten or school attended by the child.

3. Both parents shall be entitled to attend any day care centre, kindergarten, public or school social, sporting or educational event involving the child, including but not limited to are performances, sporting events, training sessions, photo days, school activities and functions, Christmas parties and other special occasions.

4. During the time the child is with either parent, the parent shall:

   (a)Respect the privacy of the other parent and not question the child about the personal life of the other;

   (b)Speak of the other parent respectfully;

   (c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child;

   (d)Not discuss with the child or in the presence or hearing of the child these court proceedings.

5. The mother be restrained and an injunction granted restraining her from relocating the child, to live permanently in New Zealand.

Living arrangements

1. The child shall live with the mother at all times other than as provided herein.

Up until the child starts school

1. The child shall live with the father as follows:

   (a)Until the child is four years old:

   (i)     Each alternate weekend from 5:30pm Friday until 8:00am Monday; and

   (ii)    Each week from 7:00am Wednesday until 5:30pm Thursday.

   (b)From when the child is four years old up until he commences school:

   (i)     Each alternate weekend from 5:30pm Friday until 8:00am Monday;

   (ii)    From 7:00am Wednesday until 5:30pm Thursday each week; and additionally

   (iii)     For a period of four days of each gazetted Queensland State school holidays.

After the child starts school

1. The child shall live with the father during school term:

   (a)Each alternate week from after school Thursday until before school Monday to continue fortnightly thereafter until the commencement of any school holiday period;

   (b)Each week from after school Wednesday until before school Thursday;

   (c)This order shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.

2. Otherwise, the child shall live with the mother during school term.

3. The child shall live with his parents for school holiday periods as follows:

   (a)Being the first half of the Autumn, Winter, Spring and Summer school holidays in even numbered years with the father in odd numbered years and with the mother with the Summer holidays with the father to be in non-consecutive blocks of seven nights in the first year only and thereafter revert to half of the school holidays;

   (b)The second half of the Autumn, Winter, Spring and Summer school holidays in odd numbered years with the father in even numbered years and with the mother with the Summer holidays with the father to be in non-consecutive blocks of seven nights in the first year only and thereafter revert to half of the school holidays;

   (c)For the purposes of these orders, the school holiday time shall commence:

   (i)     When a parent’s time falls in the first half of the holidays from after school on the day school term finishes and conclude at 5:00pm on the day calculated to be half of the holidays;

   (ii)    When a parent’s time falls in the second half of the holidays from 5:00pm on the day calculated to represent half of the holidays when contact shall end at 9:00am on the day the school term recommences;

   (iii)     School holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9:00am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father/mother shall retain the additional right.

4. Each parent shall be punctual in attending changeover and if there is to be a delay shall phone the other parent.

5. Each parent shall deliver and return the child’s clothing, school supplies and belongings and the child’s clothing shall be returned in a clean condition.

Telephone communication

1. Notwithstanding any other order herein, either party shall be at liberty to communicate with the child by telephone or Skype if the child is not in their care:

   (a)Each Monday between 5:30pm and 6:30pm;

   (b)Each Thursday between 5:30pm and 6:30pm;

   with the parent with whom the child is not living to initiate the call to the other parent’s landline or mobile telephone and the other parent to ensure that the child is available to receive the telephone call and ensure that the child has privacy during the conversation.

2. The child shall be at liberty to communicate with either parent at any time that he should express a wish to do so and the parent with the care of the child shall facilitate the child initiating such communication.

Travel out of the country

1. Both parents do all acts and things and sign all necessary documents to ensure that the child has the necessary visa requirements and any and all other necessary travel documents to travel overseas.

2. The parents agree they may each take the child overseas during their holiday time with the child to such countries that are Hague Convention on International Child Abduction provided that the advice provided by the Commonwealth Government’s Department of Foreign Affairs and Trade (presently available on the website: smarttraveller.com.au) for that country does not recommend a Level 3 “Reconsider your need to travel” or a Level 4 “Do not travel”.

3. The travelling parent shall advise the other parent of their intention to travel overseas with the child no later than 60 days prior to the intended departure date with details as to the intended duration and destinations for that travel and dates of the travel and each parent shall agree on the duration of travel if it is outside of their holiday time with the child which shall not exceed three weeks.

4. Neither parent shall unreasonably withhold their consent for extended overseas travel outside their holiday time with the child.

5. The travelling parent will provide to the other parent, at least 30 days prior to the date of the intended departure, with a copy of the following:

   (a)Return airline tickets or e-ticket confirmation showing the date of departure from Australia and return to Australia for the child and travelling parent;

   (b)Itinerary of the places where the child will be staying and the dates;

   (c)A contact telephone number;

   (d)Proof of travel insurance with medical cover for the child and the travelling parent.

6. During the trip the travelling parent shall arrange for the child to telephone the other parent on at least one occasion in each week.  The parent who is travelling overseas with the child shall ensure that they telephone the other parent to confirm the child’s safe arrival and immediately prior to the child’s departure for the return flight to Australia at the end of the holiday.

7. The father shall retain the child’s passport and provide it to the mother upon request at least 7 days prior to the departure to facilitate any overseas travel by the mother with the child and that the mother shall return the child’s passport to the father within 7 days of returning to Australia from any overseas travel with the child.

8. In the event that the child requires a renewed passport to travel overseas, the travelling parent will complete all necessary paperwork and supply same to the other parent who will sign and complete all documents and return it to the travelling parent within 7 days and that each parent will be responsible to pay for one-half of the application fee to have the passport renewed.

9. At all other times the passports of the child shall be retained by the father.

10. Where a parent intends to travel with the child, whether overseas or interstate, outside of that parent’s normal holiday of school time with the child, then the parent who has foregone that holiday or school time when the child would otherwise be living with them, shall receive make-up or equivalent time within that same holiday period and if such make-up or equivalent time is not able to be exercised during that same holiday period then at the next lot of school holidays.

Dispute resolution

1. In the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the parent before making any further application to a court shall:

   (a)Either attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney-General; or

   (b)Participate in family dispute resolution with a Family Relationship Centre or a person authorised under s 10G of the Act.

Parenting order program

1. The parties shall undertake a Parenting Order Program;

2. The parties shall, within 7 days of the date of these orders contact the Parenting Order Program co-ordinator (or nominee) for intake into the program.

3. The parties shall comply with any reasonable direction of the Program Co-ordinator, and in particular:

   (a)Attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;

   (b)Advise the Program Co-ordinator of their contact telephone number and advise of any change in that number;

   (c)Attend and participate in the program as requested including referrals to treating health professional as recommended by the Program Co-ordinator (provided that either party may refuse at their election to participate in joint sessions);

   (d)Attend a Triple P Parenting Program or equivalent program as nominated by the Program Co-ordinator;

   (e)Attend an Anger Management Counselling Program as nominated by the Program Co-ordinator;

   (f)Attend such drug and alcohol programs as may be nominated by the Program Co-ordinator;

   (g)In the event that either party refuses or fails to attend the program or any part thereof without reasonable excuse or refuses to accept a reasonable direction of the Program Co-ordinator, then the matter may be relisted by either party on the giving of 24 hours’ notice.

4. For the purposes of the program:

   (a)A copy of these orders will be sent to the Program Co-ordinator;

   (b)The parties shall supply the Program Co-ordinator a copy of any parenting orders or parenting plan;

   (c)Within 7 days the parties should contact the Program Co-ordinator by telephone to arrange an intake interview;

   (d)The parties are given leave to supply to the Program Co-ordinator a copy of any reports that have been prepared in the course of any proceedings that resulted in the parenting orders.

5. Otherwise all extant applications be dismissed and the matter be removed from the list of active pending cases.    

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC2016/2014

Mr Kent

Applicant

And

Ms Wignal

Respondent

REASONS FOR JUDGMENT

introduction  

1. These proceedings relate to the parties’ only child, B, born in 2013 and therefore presently 3 years of age (“the child).  Ms Wignal (“the mother”) seeks orders that she be permitted to relocate from C Town in Australia to D Town in New Zealand with the child, in which event, assuming that Mr Kent (“the father”) does not also relocate, she proposes that the child spend four weeks of block holiday time with him in either Australia or New Zealand, together with weekend time in New Zealand no more than once per month if the father so chooses.  She proposes that there be a gradual increase in that block time to the point where after the child turns seven, there would be a total of eight weeks which the child would spend with the father. 

2. In the event that she were not permitted to relocate with the child, the mother proposed that the child live with her, but spend time with the father for two nights each alternate weekend, and one night during each week, which would increase, once the child commences school, to three nights each alternate weekend, together with one half of all school holidays.  She also proposed that the child spend time with the father on special days.

3. The father opposes the mother having permission to relocate to New Zealand, and as articulated in his Case Information filed 27 March 2015, in that event sought progressively increasing time with the child culminating, once the child commenced school, in five nights per fortnight, and for one half of school holidays.  He did not articulate any proposal in the event that the child were permitted to relocate with the mother to New Zealand, but he did not also relocate.  He did seek a suite of orders in the event that the mother relocated to New Zealand without the child, but the mother’s uncontradicted evidence before me was that she would not do that.  The father did not propose any regime of orders if the mother were to relocate the New Zealand and the father also relocated, no doubt consistent with his evidence that he was unable to do so.

4. Both parties agreed that they should have equal shared parental responsibility for the child, irrespective of where he lived.

BACKGROUND FACTS

The father

1. The father was born in 1978 and hence is presently 38 years of age.  It seems that he grew up in C Town and has spent most, if not all, of his life there.  He has been employed in a range of occupations, but has no particular trade or other qualification.  I know little of his relationship history prior to December 2009, when at the age of 31 years, the father commenced to cohabit with the mother in C Town.

The mother

1. The mother was born in New Zealand in 1984, and hence is presently 32 years of age.  After leaving school in New Zealand she qualified as a tradesperson.  During that time, she learned that she in fact had an allergy, and a severe allergic reaction could be triggered if certain material was able to enter her body through a cut to her skin.  In 2005, when the mother was about 21, she moved to Australia, and eventually settled in C Town, working in her trade. She was 25 years of age when she commenced her relationship with the father in December 2009.

The relationship

1. Initially the parties cohabited in a secondary dwelling on the paternal grandparents’ home, but after some time they moved in to their own rented accommodation.  It appears as though both parties were in employment during the course of the relationship, although in June 2011 the mother ceased employment in her trade and commenced employment with Company E.

2. On 18 February 2013, the child the subject of these proceedings was born, and it was not in dispute that both parties were actively involved in his care from the outset.  The parties finally separated on 2 March 2014, when the child was barely one year old.  Their relationship therefore lasted just a little over four years.

Post-separation

1. Seemingly within a day or two of separation, the mother indicated that it was her intention to relocate to New Zealand with the child.  She says that although the father initially agreed to that course, in fact on 7 March – only five days after separation – the father commenced these proceedings in Federal Circuit Court seeking orders that the child live with him, seemingly in an effort to forestall any relocation by the mother.  Then on 28 March 2014, the mother’s employment with Company E was suspended, apparently because the mother was unwilling or unable to accede to her employer’s demands to commence work at a particular hour which clashed with her childcare arrangements.  Whilst her employment was suspended, she received no income and was not able to access Centrelink benefits because she is neither an Australian citizen, nor has a visa which would entitle her to access such benefits.  Her mother and stepfather commenced to financially support her.

2. During the early stages of these proceedings, a significant issue arose in relation to assertions that each party were abusing illicit drugs.  In fact in May 2014 both parties undertook hair follicle drug testing, and each tested positive for the presence of methamphetamines.  Subsequently both parties have conceded that during the relationship – and seemingly afterwards – they were reasonably regular users of methamphetamine.  However subsequent tests have proved negative, and there was no issue raised by either party at trial that either currently presented a risk of harm to the child based upon illicit drug use.[1] 

   [1]For completeness I should note that on 4 July 2014 the father tested positive to opiates, but explained that on the basis of flu medication which he was then taking.

3. On 22 May 2014 the mother’s employment with Company E resumed, however it was finally terminated on 18 September 2014.  She then commenced unfair dismissal proceedings against Company E, although they were ultimately not pressed by her, but rather she commenced an anti-discrimination complaint against Company E which eventually settled for $5,000.00.

4. In the meantime, on 21 January 2015, the mother commenced employment with Company F and later with Company G.  Given what appeared to be an imminent dismissal, she ultimately resigned from that employment in March 2016, and was unemployed at the time of trial before me.

5. Post-separation the father has remained in employment with H Org, which employment appears to be something less than a permanent full-time job.  At the time of trial he had an offer to obtain permanent full-time employment with his employer, but was awaiting the outcome of these proceedings before determining whether to accept it.

6. It is not in dispute that the mother’s own mother and step father have made significant financial contributions to the mother since separation, albeit that they principally comprise the payment of her legal costs.  Likewise, the father’s parents have contributed to his legal costs post-separation.

7. In August 2015 the mother re-partnered with another New Zealand citizen who is resident in C Town, Mr I.  Whilst the relationship is exclusive and anticipated to be long lasting, and sees Mr I spend up to five nights a week in the mother’s home, the mother and Mr I do not yet regard themselves as living together, and indeed Mr I has recently renewed a six month lease on the property in which he is presently living with others.

8. The father has not re-partnered, and as at trial, remained living in self-contained accommodation adjacent to his parents’ home.

THE ISSUES

1. With the assistance of the parties during the course of the trial, I identified that the following are the issues in these proceedings, in the sense that their determination is likely to substantially inform the orders which I might make:

   1.What is the nature of the relationship between the child and each parent.

   2.Would the child benefit from a meaningful relationship with each parent and if so, how might it best be facilitated.

   3.What, if any, risk of harm to the child is posed by each parent.

   4.Is it reasonably practicable for the mother to remain living in C Town.

   5.Is it reasonably practicable for the father to relocate to D Town.

   6.What benefits would relocating to New Zealand have for the mother, particularly in relation to:

   (a)Her financial circumstances;

   (b)Her family support;

   (c)Her parenting capacity.

   7.What effect on the child would there be if he were to relocate to New Zealand but the father did not also relcoate

   8.If the mother and child relocate to New Zealand, but the father does not, would the mother facilitate a meaningful relationship between him and the child.

   9.Would the parents’ communication be adequate to support equal shared parental responsibility.

2. Once I have discussed the relevant statutory provisions and legal principles, but in advance of a consideration of the appropriate orders in this case, I will discuss those issues in that order.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (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).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

3. However s 61DA(2) provides that 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. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. In the event that equal shared parental responsibility is ordered, then if it is both in the child’s best interests and reasonably practicable,  the court is obliged pursuant to s 65DAA(1) to then consider whether the child should spend equal time with each of the parents.  If it does not so order, then it is obliged pursuant to s 65DAA(2) to then consider, if it is both in the child’s best interests and reasonably practicable, whether the child should spend substantial and significant time with each of the parents.  In either case, the matters which the court must have regard to in assessing reasonable practicability are enumerated in s 65DAA(5).

6. Finally s 60CA 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. The matters which a court must consider in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].

7. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Relocation

1. The application of these provisions in the context of relocation cases has been discussed by many authorities.  In the decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paras.79 to 81, where her Honour said as follows:

   79. In considering whether the child should live with the parent who proposes to relocate a court:

   ·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   ·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   ·Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   ·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   ·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   ·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   ·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.   Depending on factors such as  the age of the child, the wishes of the child, the relationship between the child and a parent,  the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   -    that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   -    that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   -    that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   -    the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   ·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. 

   80. It follows from my exposition of the legislation, that earlier core principles:

   -    that the child’s best interests remain the paramount but not sole consideration;

   -    that a parent wishing to move does not need to demonstrate “compelling” reasons;

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

   -    the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   81. What the legislation now requires is:

   - consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   -     if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility  applies the consequences of an order for equal shared parental responsibility

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.

2. More recently in Zahawi & Rayne [2016] FamCAFC 90 the Full Court said (footnotes omitted):

   47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests.  What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:

   …The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents:  obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.[2]

   48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests.  However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation.[3] And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.

   [2]          U v U (above), at [92].

   [3]See, for example, the comments of Kirby J in AMS v AIF (above), at [77]–[78].

NATURE OF RELATIONSHIP BETWEEN CHILD AND EACH PARENT

1. Ordinarily in a case such as this, or indeed any case involving parenting orders, one would anticipate that there would be an up-to-date Family Report.  This case was notable in that the most recent – and only – such report was that prepared by a social worker, Mr J, in October 2014.  It is therefore outdated by more than 18 months at the time of these reasons.  Whilst in some cases vintage to that extent may not be significant, in this case, that is more than one half of the age of the child in question.

2. The parties are not directly to blame for this, in that although in these proceedings there was no Independent Children's Lawyer, and hence they were obliged themselves to organise and fund the preparation of any updated report, the Registry listed trial apparently came on with insufficient notice to the parties to enable them to obtain a free date from Mr J to conduct updated interviews.  That is highly regrettable, particularly since, as shall be seen, many of Mr J’s answers to the issues were necessarily either of little assistance, or highly caveated even if they were of some assistance.

3. This issue was no exception.  Mr J’s evidence was that he simply did not know what the current nature of the relationship between the child and each parent was, but he was of the view that in October 2014 both parents had a good relationship with the child.  Fortunately this was not a matter in contention.  Although the mother does claim that she remains, and has always been, the primary care provider for the child, she concedes that the father’s relationship with the child is a good one, marked by reciprocal love and a good capacity on the part of the father to provide for the relevant needs of the child when he is in his care.  For his part, the father conceded that the mother was an excellent mother and that she enjoyed a good relationship with the child.

1. I am satisfied that both of the parties have a good, nurturing and loving relationship with the child, and for his part, the child identifies both parties as sources of substantial security for him in his life, and loves each of them.

BENEFIT OF MEANINGFUL RELATIONSHIP WITH EACH PARENT

1. Again this was a matter that was not really in dispute between the parties.  Both conceded that the child would substantially benefit from a meaningful relationship with the other, and neither really contended with vigour that it would be best facilitated other than by each of the parties regularly spending face-to-face time with the child.  Particularly there was no contest with Mr J’s evidence that, for a child of this age, it is hands on, physical care which will best facilitate a meaningful relationship between each parent and him, in order for the child to obtain a secure, intimate and trusting relationship with them.  Not only did he contend that physical interaction is a form of communication with a child of this age, particularly given their limited auditory capacity, but further, Mr J emphasised that hands on care was a tangible communication to the child of the parent’s capacity to, and the fact of their, care for the child.

2. To her credit, notwithstanding the orders which she seeks, the mother did not seriously contend that Mr J’s evidence was incorrect, and indeed did not cross-examine him.  Rather she focussed upon the fact that the father already has a well-developed meaningful relationship with the child, which she contends can be adequately maintained by electronic means, so long as it is regularly interspersed with block holiday time between the father and the child.  She did not claim that this outcome was ideal, but placed particular significance upon the fact that, unusually in the case of a three year old child, the father is already spending substantial overnight time with the child each fortnight, so that, perhaps again unusually, it is not a case of needing to develop the relationship, but rather of maintaining an already extant and well-developed one.

3. I am therefore satisfied that the child would indeed benefit from a meaningful relationship with both parents, and that it would be best be facilitated by each spending frequent face-to-face time with the child.  I should interpolate that Mr J drew a distinction between frequency and regularity; he said that frequency was more important than regularity, in that the greater number of interactions, the better the relationship would be.  I accept that evidence.

4. Mr J also opined that Skype or like means was not sufficient for the child to obtain optimum benefits from a meaningful relationship, in that he placed significance on a child of this age having physical interaction with his parents as discussed above.  I accept that evidence.  Nonetheless it is plain that a relationship of a kind – undoubtedly less than optimal but perhaps nonetheless meaningful – could be sufficiently maintained by a combination of block holiday time and regular electronic communication in between.

REASONABLY PRACTICABLE FOR MOTHER TO LIVE IN C TOWN

1. This was one of the, if not, central planks of the mother’s case.  She says that she is unable to afford to continue to live in C Town, and in the past has only been able to do so because of the generous assistance of her mother and stepfather.  She says that even when she has been in employment, her financial position has been on a knife edge, in that she is unable to, without assistance from others, fund any unexpected bills, for instance car repairs, as has happened in the past. 

2. In the mother’s Financial Statement filed 11 April 2016 (and hence after her employment with Company G had ceased) she deposed that her total average weekly income was $319.00, but her total weekly expenditure was $864.00.  She was not cross-examined by reference to the actuality or reasonableness of any of that expenditure, which does appear modest.  Moreover, she has no cash reserves; as at the date of that financial statement, she had only a little over $1,000.00 in the bank.  She otherwise has very few assets: a 2004 car valued at $8,000.00 and household contents said to be worth $2,000.00.

3. The sources of her income are twofold.  The first is child support paid by the father in the sum of $150.00 per week, and the second is some government benefits, principally family tax benefits, totalling $169.00 per week.

4. The shortfall in the mother’s weekly living expenses in the past has been met by her mother.  It is not contentious that since 28 January 2015, the maternal grandmother and her husband have provided weekly living expenses to the mother totalling $8,936.00, and prior to then, they had paid approximately $15,695.00 by way of living expenses (including rent) since the date of separation.  These sums are only a minor part of the financial assistance which they have provided to the mother, which in total exceeds $150,000.00, albeit that more than $105,000.00 of that sum is attributable to legal fees.  Other payments include the discharge of the mother’s credit card debts at separation, the repayment of New Zealand student loans, the bond on the mother’s present rental accommodation and some contribution towards the mother and child’s health insurance.

5. In her affidavit filed 11 April 2016, the maternal grandmother deposed that she was “unable to continue to provide the same level of financial support to [the mother] once these proceedings have been finalised.”  However she also said that, until the mother again obtains employment, she would continue to pay the mother’s rent in C Town.  She was not challenged in relation to any of that evidence.  That said, of course with the cessation of this legal dispute, there will be presumably no ongoing legal fees, and the mother’s credit cards and student loans have now been discharged.

6. Whilst not directly contesting the mother contention that she is presently dependent on others to financially survive in C Town, the father pointed to two matters as tending to mitigate the significance of the point made by the mother.  The first is that the mother has, in the 11 years she has been living in Australia, in fact been able to financially survive, particularly by virtue of having regularly been in employment.  The father argues that the mother has two industries where she could seek employment.  He says that employment would be readily available for the mother in relation to the former field trade.  Against this the mother contends that her allergy, combined with the fact that the child is substantially dependent upon her for his care, on a practical level makes such employment highly undesirable and unattractive, and further, that the nature of the employment is not ideal given that it is “transient and seasonal.”

7. As to the mother’s employability in her most recent form of employment, the father points to the fact that she has now worked for both Company E and Company G, and whilst having brought proceedings against Company E with some success may practically rule out her being employed again with that company, says that the mother nonetheless has good experience and contacts in the industry, which is demonstrated by the mother’s uncontradicted evidence that since leaving Company G, she has applied for seven positions, including two positions with Company G.  In effect, what the father asks me to conclude, is that there is a strong probability that the mother will again obtain employment, and the present financial predicament which she is in will be resolved.  Whilst that may very well be true, that does not deal with the prospect that at some stage again in the future, the mother is likely to be out of employment for some time, and unless she is able to save some money to cover periods of unemployment, or reduce her expenditure, she is likely to return again to a situation where she is dependent upon others for her day-to-day living expenses.

8. The second matter relied upon by the father is the prospect that the mother may shortly commence to share expenses, if she commences to cohabit with her new partner, Mr I.  As to this, both the mother and Mr I gave evidence that their relationship is a committed and a serious one, but that they are taking it slowly.  They are in no particular rush to commence cohabitation, as is borne out by the fact that Mr I has recently signed a further six month lease on the property in which he resides.  That said, Mr I indicated that in the event that he and the mother did cohabit, he would inevitably contribute to the household costs, including rent and food. 

9. Mr I was cross-examined as to why, given that he spends up to five nights per week living in the mother’s home, he presently makes no such contribution.  As to a contribution to rent and outgoings, for instance electricity, there does not seem to be any real reason why he does not make contribution, other than the fact that he has his own home he could live in.  As to contribution to food, it appears as though he does not regularly eat at the mother’s home, and moreover, if the parties go out, he will seemingly pay for all of the costs of meals and the like.

10. There was a further argument advanced by the father, albeit not one which would see the mother immediately able to, when unemployed, survive without the assistance of others, and that is that there is some prospect that she could either become an Australian resident or qualify for a visa of a kind which would see her entitled to access social security benefits.  Each of the parties called a migration lawyer to give evidence in relation to those prospects.  It appeared as though neither of those witnesses had been comprehensively briefed in relation to the mother’s skills and qualifications and her current personal circumstances, particularly her relationship with Mr I.  Certainly it does appear as though there are some paths open to the mother by which she could obtain a visa which, it seems, would entitle her in times of unemployment to access Australian social security benefits, but that would require her to initially work again as a tradesperson for a period, and to then qualify for a visa based upon that occupation.  It might also be the case that in the event that the mother has been in a de facto relationship with Mr I for in excess of 12 months, if he were able to obtain such a skilled visa, based upon his occupation as a tradesman, that the mother would get some derivative entitlements as well.

11. However the evidence really went no further than saying that there is a possibility that the mother could, at some time in the future, have an entitlement to access social security benefits, if she applied for, and was successful in obtaining, a relevant visa.  The evidence simply went no further than demonstrating that as a possibility, albeit perhaps a live possibility.  However it certainly does not address the current problems of support which the mother faces.

12. It can therefore be seen that the evidence goes both ways in relation to this issue.  At times when the mother is in employment, it seems that she is able to financially survive in C Town without the assistance of others, but at times of unemployment she is not able to, because of her inability to access Australian social security benefits.  That said, there is reasonable prospects of the mother obtaining future employment in C Town, and there is a reasonable prospect that at some time in the relatively near future, she and Mr I will cohabit, and hence she will have the benefit of his assistance in meeting the costs associated with the conduct of a household, accepting of course that those costs are likely to increase when there is a third person living in the home.  In the meantime, some more limited financial assistance will likely be proffered to her by her mother and stepfather in the event that she is not able to relocate, and there is the more distant prospect that at some stage in the medium term, she may, if she engineers the appropriate circumstances, in fact qualify to access Australian social security benefits during times of unemployment.

13. Plainly as at the time of trial, the mother could not afford the costs of living in C Town without the assistance of others.  However there are reasonable grounds to believe that the mother will be able to obtain some alternative employment in the future, and that her financial precariousness will then again abate.  If she does, it would be reasonably practicable for her to remain living in C Town, although perhaps with little, if any, financial margin for error. 

14. Ultimately perhaps the answer to this issue is to say that during periods of employment, it will be reasonably practicable for the mother to remain living in C Town, but during periods of unemployment she will only be able to do so with the continued assistance of others.  Therefore upon analysis the answer to this issue is a qualified “yes”.

REASONABLY PRACTICABLE FOR FATHER TO RELOCATE

1. The father has never lived in New Zealand, and has no employment history in that country.  It appears as though he has no trade qualification or skills, but rather has had employment in semi-skilled occupations.

2. The mother contended that the area in New Zealand to which she would like to relocate is presently experiencing, if not a boom, then at least improved financial circumstances, which would see the father reasonably able to obtain employment.  However other than on that general level, there was no evidence as to any particular types of jobs that the father would be likely to obtain, or that the father would enjoy any better prospect than others of obtaining such employment as exists there.

3. On the other hand the father conceded that he had made no real serious endeavour to investigate the opportunities for employment in New Zealand, other than some seemingly cursory perusal of internet job sites.  I sensed that the father, because he is so adverse to the prospect of relocation, had not seriously undertaken any inquiries.

4. Against that background the mother placed some significance upon what the father had originally told the Family Report writer Mr J in 2014.  In that interview he told Mr J that, in the event the mother and child were permitted to relocate to New Zealand, he would relocate as well.  However his unchallenged evidence was that he only told Mr J that without thinking, and it was something in the order of knee jerk reaction.  He said that upon reflection, he realised that it would not be practicable for him to relocate, and further, that he would not do so.

5. Ultimately the evidence falls well short of enabling me to conclude that it is reasonably practicable for the father to relocate to the area where the mother proposes to relocate to, but by the same token, it is not possible for me to conclude that it is not reasonably practicable for him to do so.  The evidence is effectively neutral on this point.

BENEFITS TO MOTHER OF RELOCATION

Overview

1. The mother relied upon two principal benefits of relocation; the first is an improvement in her financial circumstances, and the second is the increased support which she would have available to her from a network of family and friends.  Although not directly doing so, inferentially she argued that that combination would see her parenting capacity improve, for the benefit of the child.

2. I will discuss those matters individually before reaching a conclusion as to the net benefits.

Financial circumstances

1. One of the great attractions, at least in the short term, of relocation to New Zealand from the mother’s perspective, is that adjacent to the maternal grandmother’s home in New Zealand is a two bedroom unit which, although presently rented to her brother for $150.00 per week, would be made available for the exclusive use of the mother and the child for free, and the mother would not be required to contribute towards other household bills.  The mother’s evidence is that therefore she would have savings of $430.00 per week, being the current rental and electricity costs which she meets.

2. However those are not the only additional benefits which the mother would have, in that she would also have access to a New Zealand social security payment of $325.98 per week, together with a family tax credit of $92.72 per week.  Therefore effectively what the mother says is that she would be able to survive in New Zealand, albeit perhaps not particularly comfortably, irrespective of whether she was able to obtain employment there.  Further, in the event that she were able to obtain employment, and then obtain independent accommodation, she would be able to access further government benefits, comprising a childcare subsidy of up to $250.00 per week and an accommodation supplement of $110.00 per week.

3. None of this was challenged by the father, and I am comfortably satisfied that the mother’s financial circumstances would materially improve upon relocation to New Zealand, principally because she can access social security benefits which are not available to her in Australia.  I did not understand the mother’s case to be that if she were to obtain employment and move out of her parents’ accommodation, as she intends to do, that her financial circumstances would be materially better than if she were in employment in Australia.  Rather it is the access to social security benefits in times of unemployment or partial employment, which is the perceived advantage of relocation in that regard.

Family support

1. In addition to her mother and stepfather, there are a number of other relatives who live in the D Town district, and in New Zealand generally.  Further, the mother already has friends in the district from the time when she was previously living there.  The mother says that this extended support network would enable the child to be cared for in the event that she were unable to care for him, for instance during times of illness or indisposition, and in this regard she was not challenged.  However the father pointed to the fact that on her own evidence, the mother has two close friends in C Town who do afford her support, and further, her partner Mr I is also prepared to offer support to her in relation to the care of the child, if she is unable to attend to him.  Finally the father says that he has in the past readily adapted his own circumstances to care for the child when the mother was unable to do so; for instance during her most recent period of employment he increased the time that the child spent with him by a further two days so as to accommodate the mother’s work requirements, and he was able to adapt his own work to fit that in.  Therefore the father says that the mother is not devoid of support in Australia, although necessarily it is not family support.

2. Upon balance I am satisfied that there would be some marginal increase and available support to the mother in New Zealand, but that she already has some real level of support in Australia.

Parenting capacity

1. Whilst the mother did not directly predict an improvement in parenting capacity would result from relocation, ultimately that was the way in which her case was presented.  Mr J also noted that the mother did not assert in her interviews that her parenting capacity would improve with relocation, but he did concede that she thought that her life there would be more stable and less stressful, and he opined that that is likely to have a bearing on her availability as a mother to the child.  I am satisfied that there would be more stability and less stress for the mother if she were to relocate to New Zealand, and I am satisfied that there would be some increased availability of the mother to the child, which could be expressed as an improvement in parenting capacity.  That said, the mother has been doing an excellent job in raising the child in Australia, and hence any improvement in her capacity would start from a high threshold position.

Evaluation

1. If permitted to relocate to New Zealand, there would be an improvement in the mother’s financial circumstances during times of unemployment, there would be some increase in family support, and there would be some increase in the mother’s parenting capacity.  Therefore there are tangible benefits to the mother and child from relocation.

EFFECT ON CHILD OF RELOCATION

1. Mr J’s unchallenged evidence was that there would be two significant effects on the child of relocation (assuming that the father did not also relocate).  The first would be the loss of his immediate relationship with the father, and the second would be the loss of an ongoing opportunity to develop, over time, a stronger sense of trust in the father as a broad and trusted care giver.  He further said that there would be a degree of stress for the child at changeovers, because he is simply too young at present to understand when leaving the father’s care, that he would see him again at some particular time in the future.

2. The mother did not cross-examine Mr J on this point, or indeed cross-examine him at all.  I accept that evidence.

3. I have already noted that the child presently enjoys a meaningful relationship with the father, and he frequently spends face-to-face time with him, which frequency enables him to develop a secure, intimate and trusting relationship with him.  Further I have noted Mr J’s unchallenged evidence that Skype is not a suitable alternative to frequent face-to-face time, particularly given the age of the child in question.

4. The mother’s counter to this is to say that, unusually for a child of this age, the father already is spending regular overnight time with the child, and hence has already had the benefit of an established relationship with him.  However that only goes so far to meet the concerns of Mr J that frequent face-to-face time is required to build and maintain that relationship, particularly given the child’s inability, at present, to fix in his mind a specific time when he would be seeing the father again.

5. The mother also points to the benefits to the child of her improved availability to him if she were in New Zealand.  However she did not, so far as I could discern, seek to argue that that benefit outweighed the disadvantages to the child of relocation.

6. I am well satisfied that if the mother and child were to relocate to New Zealand, and the father did not do so, that the net impact on the child would be a negative one, and his experience of, and relationship with, the father would be substantially, and perhaps dramatically, curtailed.

WOULD MOTHER FACILITATE MEANINGFUL RELATIONSHIP WITH FATHER AND CHILD

1. This was an area of some controversy between the parties.  For her part the mother pointed to the fact that she has not been resistant to the father spending overnight time with the child, even from an early age post-separation, and that the parties have been able to achieve increases in the father’s time with the child without the need for recourse to court orders.  For his part the father says that those increases have not been the product of negotiation, but have simply been dictated to him by the mother, and further, points to the fact that on occasions when the mother has travelled to New Zealand with the child, she has not adhered to the parties’ arrangements as to Skype time, and has not afforded the father make-up time to compensate him for lost time with the child in Australia.  The mother seeks to explain the Skype issue on the basis that the child was suffering from tonsillitis, but the father counters this by saying that the mother did not communicate that fact to him, and he was simply left with no Skype communication and no explanation as to why it was not occurring.

2. The father also points to the fact that the mother has, in the past, applied for New Zealand citizenship and a New Zealand passport for the child without telling him, and worse, although she had made such an application without his knowledge, whilst it was still pending, consented to orders prohibiting her from so applying, without disclosing that in fact she had already done so.  For her part, the mother accepted that she had mislead the father, and moreover had acted without his knowledge or consent in applying for the citizenship and passport, and that doing so was a mistake.  She also positively asserted that she recognises the benefit to the child of a relationship with the father, and says that her conduct in freely increasing the child’s time with the father is a good demonstration of that.

3. It cannot be denied that these parties have achieved a degree of shared care in relation to the child which many other parties in their position are not able to.  In this sense these parties are indeed unusual.  However equally it can be seen that on occasions the mother does act unilaterally, to the point where there probably is substantial truth in the father’s assertion that it is either “the mother’s way or the highway.”  However all of that falls short of persuading me that the mother would not facilitate a meaningful relationship.  That said, there is some question mark over this issue, such that although the balance does tip in the mother’s favour in relation to this issue, it does not do so significantly.

CAN PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY

1. Both parties implicitly accepted that their communication is adequate to discharge the exercise of equal shared parental responsibility, because both parties sought that order.

2. The parties are able to engage civilly, although as I have indicated, it is likely that the mother does tend to impose outcomes upon the father without inviting dialogue.  That said, I am satisfied that their communication is adequate to enable them to discharge their obligations under s 65DAC.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already dealt with the primary considerations, and many of the additional considerations, when discussing the issues above.  Nonetheless I make the following further observations.

2. The child is too young to express any views.

3. The child enjoys not only good relationships with each parent, but also with his extended family on both sides, save that by virtue of living in Australia, he has spent far more time with the relatives on his father’s side than his mother’s side.  Particularly, given the father lives on accommodation on his parents’ property, on which property his brother also resides, has meant that the child has spent considerable time with the paternal grandparents, and with the father’s brother and his children when they are spending time with him.  Obviously in the event that he were to relocate, the opportunity for the child to spend the extensive time which he has done with those relatives would be significantly reduced.

4. Both of these parents have engaged in all aspects of the child’s life to the fullest extent possible.  Both are exemplary parents.

5. Whilst the father has only been assessed as liable to pay $25.00 per week in child support, he has voluntarily paid $150.00 per week.  True it is that the mother says that on occasions that has been paid late or unpredictably, but that does not really detract from the fact that this is a father who is far from begrudging in making funds available to the mother to support her and the child, and provides well in excess of that which, if he simply stood on his rights, he would be obliged to pay.

6. Neither of parties have funds to enable frequent travel of either themselves or the child between Australia and New Zealand.  The most that they could afford, in combination, would be probably about four trips per year.  Inevitably, in the event that the mother and child relocated, but the father did not, that would mean that the child’s right to maintain personal relations and direct contact with the father on a regular basis would be significantly impacted.

7. There is no suggestion that either of these parents lack capacity to fully provide for the child’s needs.  Likewise as I have already commented, the court here is dealing with two excellent parents, who have fully shouldered the responsibilities of parenthood.

8. The mother asserts that there was family violence in the relationship, but it was common ground at trial that this was not a case which stood to be determined by reference to that historical violence, if indeed it occurred.  That is because both parties agree that there should be equal shared parental responsibility, and no party contends that either presents a risk of harm to the child, whether from family violence or otherwise.

9. Interestingly, the mother said that if she were not permitted to relocate, it is likely that at some stage in the future she would again litigate the relocation issue.  I accept that that may well be so, but I give it little weight.

10. Plainly the mother has, subject to domestic law, a right of freedom of movement and a right to live wherever she so chooses.  Whilst I give that right weight, it cannot outweigh where otherwise the best interests of the child would lie.

PARENTAL RESPONSIBILITY

1. Both parties seek equal shared parental responsibility and I am satisfied that indeed it would be in the child’s best interests, and will so order.

WITH WHOM SHOULD THE CHILD LIVE

1. Both parties agree that the child should principally reside with the mother, and spend time with the father.  There is some slender disagreement as to the extent of that time, in the event that the mother is not permitted to relocate.  However, given the fact that the child has always been principally cared for by the mother, and that she is a committed and excellent parent, I am well satisfied that the parties’ position that the mother should remain the primary carer of the child is a sound one, and reflects the best interests of this child.

RELOCATION AND TIME WITH FATHER

1. These two issues are inextricably intertwined in this case.  Because there will be orders for equal shared parental responsibility, that therefore obliges the court under s 65DAA to consider arrangements for equal time, and if not ordered, then substantial and significant time.  There is no dispute that the mother’s proposal would not constitute either of those concepts as defined in the Act, but that both parties’ proposals, in the event that she is not permitted to relocate, would comprise substantial and significant time.  However whether it be equal time or substantial and significant time, the court is obliged to consider whether spending that time is reasonably practicable.  That then clearly brings into play the issue of the proposed relocation.  If it is not reasonably practicable for the mother to remain living in C Town, then neither equal time nor substantial and significant time would be reasonably practicable.

2. As to equal time, neither party sought such an order, and I am satisfied that such an order would not be in the best interests of the child, particularly given his tender age and the fact that he has always lived primarily with the mother to date.  Whilst I acknowledge that the parties have, unusually, managed to move far quicker than many others to the father frequently spending overnight time with the child, he sensibly recognises that equal shared time is not, at least presently, in the child’s best interests.

3. Turning then to substantial and significant time, the mother clearly concedes that such would be in the child’s best interests, because that is what she proposes in the event that she is not permitted to relocate.  I am well satisfied that her position in this regard is correct.  Both these parents have much to offer this child, and the father is a particularly devoted and engaged one.  Indeed not only does he have much to offer this child, but he wants to be engaged in every aspect of his life.  It is abundantly clear that it would be in this child’s best interests for him to spend substantial and significant time each of his parents.

4. That then brings into clear focus the reasonable practicability of such a regime.  In doing so, the court is obliged to have regard to the four specific matters specified in s 65DAA(5), together with any other matter that the court considers relevant.  As to those specific matters, plainly these parents have a history of demonstrated capacity to implement an arrangement of substantial and significant time, and although not without some friction, have the capacity to communicate and resolve difficulties that might arise in implementing that arrangement.  Further I am satisfied that substantial and significant time with each parent would only have a positive impact on this child.  At present both parents live sufficiently close to each other to enable that regime to continue.  However the mother contends that, not only is it not reasonably practicable for her to continue to live there, but there are other benefits of relocation for her.

5. The following points are in favour of the mother being permitted to relocate:

   ·The child does indeed already have a meaningful relationship with the father, and frequently spends time with him;

   ·During times of unemployment, the mother is dependent upon others for her financial survival whilst living in C Town;

   ·The father has not persuaded me that it is not reasonably practicable for him to relocate to New Zealand;

   ·The mother would have improved financial circumstances and family support in New Zealand, which would likely lead to some increase in parenting capacity;

   ·The mother has a demonstrated history of involving the father in a meaningful way in the child’s life, on a frequent basis.

6. On the other hand the following points weigh against the mother being permitted to relocate:

   ·Accepting that the child has a meaningful relationship with the father, its continuation and growth would be best facilitated by frequent face-to-face time involving hands-on physical care, which is not practicable unless the father also relocated;

   ·Providing that the mother obtains employment, it is reasonable practicable for her to remain living in C Town, and during periods of unemployment it is likely that she will continue to have some financial support from her mother, or if she does not, may by then have commenced cohabit with Mr I.  Further, there is good prospects of the mother obtaining further employment in C Town;

   ·In the event that the mother were to not permitted to relocate, it is not the case that she would not be able to cope, or that her current excellent parenting capacity would be eroded;

   ·There is some question mark hanging over the mother’s facilitation of the child’s meaningful relationship with the father from long distance;

   ·The net effect on the child of relocation, if the father did not also relocate, would be a negative one as explained by Mr J;

   ·The mother has not demonstrated that it is reasonably practicable for the father to also relocate;

   ·There is some prospect that the mother may in the future qualify for Australian Centrelink benefits.

7. As with many international relocation cases, this matter is finely balanced.  Similarly, as with many international relocation cases, the court is dealing with two excellent parents who have much to offer the child in question.  Neither of these parents contend that the other has not enthusiastically discharged their obligations as a parent to the fullest extent possible, or that the other’s parenting in some way lacks merit.

8. I give substantial weight, in considering where the balance lies, to the mother’s difficulties in meeting her financial obligations in Australia, including adequate support of the child during periods of unemployment.  However, for the foreseeable future, until she obtains employment again, the unchallenged evidence of her mother is that she will continue to meet her rental, and hence the shortfall in the mother’s position is substantially reduced.  Further there is good prospect of the mother obtaining employment again in the near future, particularly given that she has already applied for seven jobs, and there is some prospect that in the not too distant future she and Mr I will cohabit, which may see him share some of the substantial expenses of the household, accepting that they may well increase.

9. Ultimately, although not without considerable thought and hesitation, I have concluded that the balance weighs very finely in favour of the father’s case, and the mother not being permitted to relocate.  Critical in determining where that balance lies is the adverse impact which relocation would have on the child’s relationship with the father.  In this context I particularly note the objects and principles of this part of the Act, and the primary consideration of the benefit to the child of having a meaningful relationship with both parents.

10. On one view this case ultimately devolves to a comparison of risk: On the one hand there is a risk that the mother may not be able to adequately financially support herself and the child in Australia, and that risk is a real one.  On the other hand, there is the risk, which can probably be assessed as certainty, that if she is permitted to relocate with the child, his relationship with the father will be substantially impacted.  Weighing those two prospects, in effect as a means of cross checking the outcome of this case, again sees the balance weigh against relocation.

11. There will not be an order permitting relocation.

12. That then brings into focus what time the father should spend with the child in Australia.  The father proposes that the present arrangements should continue, namely that each alternate weekend, the child spend time with him from 5:30pm on Friday until 8:00am on Monday, and from 7:00am on Wednesday until 5:00pm Thursday each week.  He then proposes that when the child turns four years of age, that should increase to include four days for each gazetted State School holiday.  Then, when the child turns school age, he proposes that the child live with him each alternate week from after school Thursday until before school Monday and additionally each week from after school Wednesday until before school Thursday.  He also proposes equal time between the parents on school holidays. 

13. For her part, the mother proposed an immediate regime from 5:30pm Friday until 5:30pm Sunday each alternate weekend, and from 9:00am Wednesday until 5:30pm Thursday each week, but that when the child commences school, the alternate weekend time with the father should extend until Monday morning (or Tuesday if the Monday is a public holiday or pupil free day).  She also proposes that the child spend half of the holidays with the father.

14. It can therefore be seen that the father ultimately proposes that the child should spend five nights per fortnight with him, whereas the mother proposes that it be four.  The difference between them is that the father wants his alternate week time to commence from after school Thursday, whereas the mother wants it from after school on Friday.  The effect of the father’s proposal is to see the child spend one more school night with him than does the mother’s proposal; he proposes to spend three school nights with him, whereas the mother proposes two.

15. Neither party seriously addressed this, both apparently conceding that the difference is slender.

16. Ultimately I am satisfied that there is likely some benefit to the child in spending three rather than two school nights with the father, because it will increase the opportunity for the child to have the father involved in his daily routine on days that do not fall on weekends or holidays.  I also note that there will be less changeovers for the child: on the mother’s proposal there would be another two changeovers per fortnight than on the father’s proposal.

17. The staggered proposal of the father, to ultimately culminate in that position, is in the child’s best interest, and I will so order.

OTHER ORDERS

1. I am otherwise satisfied that the proposed orders of the father are in the best interests of the child and will make them.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this Judgment.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 13 June 2016.

Associate: 

Date: 13 June 2016