Krantz and Krantz

[2014] FCCA 2895

FEDERAL CIRCUIT COURT OF AUSTRALIA

KRANTZ & KRANTZ [2014] FCCA 2895

Catchwords:
FAMILY LAW – Parenting – proposed interstate relocation – 4 year old child – relocation not permitted – alternate proposed relocation to capital city one hour away – alternate proposal allowed.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 61B, 61C, 61DA, 61DAC, 65DAA

AMS and AIF (1999) 199 CLR 160
Goode v Goode (2007) 36 Fam LR 422
Mellick and Mellick [2014] FamCAFC 236
MRR v GR [2010] HCA 4
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Morgan v Miles (2008) Fam LR 275
Taylor v Barker (2008) 37 Fam LR 461
Mazorski v Albright (2008) 37 Fam LR 518
T & N (2004) 31 Fam LR 281
Adamson & Adamson [2014] FamCAFC 232
U & U (2002) 211 CLR 238

Applicant: MR KRANTZ

Respondent: MS KRANTZ

File Number: BRC 370 of 2013

Judgment of: Judge Lapthorn

Hearing dates: 20 and 21 August 2014

Date of Last Submission: 21 August 2014

Delivered at: Brisbane

Delivered on: 11 December 2014

REPRESENTATION

Solicitors for the Applicant: Applicant appeared in person

Solicitors for the Respondent: Respondent appeared in person

ORDERS

1. That the father and the mother have equal shared parental responsibility for the child, [X], born [in] 2010 (hereinafter referred to as “the child”) for all major long term issues in relation to the child including but not limited to:-

   (a)The child’s education including choice of school;

   (b)The child’s health including decisions regarding medical treatment;

   (c)The child’s ability to travel overseas;

   (d)The child’s religious and cultural upbringing;

   (e)The child’s name; and

   (f)Any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with either parent.

2. That until such time as the mother relocates to the south east side of Brisbane defined by the Brisbane River to the north and Forest Lake to the west or 26 January 2015 whichever is the latter, Order (2) of the Orders made 28 March 2013 continue.

3. That upon the mother relocating her residence to the south east side of Brisbane as defined in Order (2) herein or 26 January 2015 whichever is the latter, the child live with the mother.

4. That upon Order (3) herein becoming operable, unless otherwise agreed between the parties the child spend time with the father as follows:

   In the event the father has not relocated to within a half hour drive of the mother’s residence:

   (a)Each alternate weekend from after kindergarten/school Friday until before kindergarten/school the following Monday extending to a Tuesday if a long weekend;  and

   (b)Each Wednesday from after kindergarten/school until 6pm.

   In the event the father has relocated to within a half hour drive of the mother’s residence as at the date of the father’s relocation:

   (c)Each alternate weekend from after kindergarten/school Thursday until before kindergarten/school the following Monday extending to a Tuesday if a long weekend; and

   (d)From after kindergarten/school each other Thursday to before kindergarten/school Friday.

5. That the child spend time with the father on the following special days:

   (a)The Serbian Orthodox Easter period from 10am Good Friday, until 6pm Easter Monday;

   (b)The Serbian Orthodox Name Day celebration from 3pm until 9am the following day;

   (c)The Serbian Orthodox Christmas period from 10am 6 January until 6pm 8 January;

   (d)Father’s Day from 10am until 6pm;

   (e)The Father’s birthday from 10am until 6pm;  and

   (f)Each alternate New Year period from 10am 31 December until 6pm 2 January commencing December 2015.

6. That the child spend time with the mother on the following special days:

   (a)The Western Easter period, from 10am Good Friday until 6pm Easter Monday;

   (b)The Western Christmas period from 10am Christmas Eve until 6pm Boxing Day;

   (c)Mother’s Day from 10am until 6pm;

   (d)The Mother’s birthday from 10am until 6pm; and

   (e)Each alternate New Year period from 10am 31 December until 6pm 2 January commencing December 2014.

7. In the event the father requests additional time over the Serbian Orthodox New Year period the child is to spend time with the mother over all of the Western New Year period.

8. In the event the Serbian Orthodox and Western Easter periods coincide the child is to spend time with each parent for two (2) consecutive days as agreed between the parents.

9. On the child’s birthday the child is to spend a minimum of two (2) hours with the parent with whom the child is not living with on the child’s birthday at a time agreed between the parents, and failing agreement from 5pm to 7pm.

10. That upon the child commencing his prep year at school the periods of time provided for in Order (4) herein be suspended during school holidays and in lieu thereof the child spend half of each school holiday with each parent as agreed between the parents and failing agreement with the father in the first half in even numbered years and the second half in odd numbered years and with the mother for the second half in even numbered years and the first half in odd numbered years.

11. That for the purposes of implementation of these orders the father is to collect the child from and return the child to his kindergarten/school but in the event the father is not able to return the child to the kindergarten/school on the Monday morning (or Tuesday morning if applicable) he is to give the mother at least 24 hours’ notice of his inability to do so and is to return the child the mother’s residence by 6pm the day prior and in the event the child’s period of time with the father is to commence other than at his kindergarten/school the mother is to deliver the child to the father as agreed and failing agreement at the father’s residence and in the event the child’s period of time with the father is to conclude other than at his kindergarten/school the father is to deliver the child to the mother as agreed and failing agreement at the mother’s residence.

12. That each parent facilitate telephone communication between the child and the other parent at all reasonable times and each parent is to use their best endeavours to ensure that the child has privacy during such communication.

13. That each parent inform the other with forty-eight (48) hours of any change to his or her residential and/or postal address, landline and mobile telephone numbers, and email and skype address (if any).

14. That neither parent denigrate the other parent or other parent’s relatives or friends to or in the presence or hearing of the child and must use their best endeavours to ensure no other person does so.

15. That by these orders each parent is authorised to receive at their own request and expense any and all information relating to the health, education and welfare of the child from the child’s treating health professional and education provider.

16. That in the event that the child becomes ill or seriously injured whilst in the care of the either parent, that parent is to notify the other parent as soon as is reasonably practicable in the circumstances.

17. That the parents refrain from smoking in the presence of the child and ensure that others do not smoke in the presence of the child.

18. That the child’s passport remain in the safe keeping of the Registry Manager of the Federal Circuit Court of Australia and only released to a party upon the written consent of the other party or further order of the court.

19. That each party is restrained from taking or sending the child out of the Commonwealth of Australia without the written consent of the other parent.

20. That in the event either party wishes to take the child overseas they must give the other parent written notice of such intention two (2) months prior to the date of the commencement of any such intended travel and therein request the consent of the other parent.

21. That within seven (7) days of receiving the notice and request provided for in Order (20) herein the other parent must inform the requesting parent whether they consent to or oppose the intended travel.

22. That not less than fourteen (14) days prior to the child’s departure the travelling parent must provide to the other parent the following:

    (i)Copy of the child’s return air tickets;

    (ii)Travel Itinerary;

    (iii)Contact details for the child whilst overseas, including a mobile telephone number on which the other parent may call the child to exercise telephone communication during the duration of the travel; and

    (iv)Copy of the certificate of travel insurance covering the child for the entire duration of the travel.

23. That the non-travelling parent be at liberty to telephone or skype the child at all reasonable times whilst the child is travelling.

24. That in the event the travel falls during periods the child would otherwise be spending time pursuant to these orders with the non-travelling parent the child is to spend make-up time with that parent before and/or after the travel.

IT IS NOTED that publication of this judgment under the pseudonym Krantz & Krantz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 370 of 2013

MR KRANTZ

Applicant

And

MS KRANTZ

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of four year old [X] are unable to reach agreement for his future parenting arrangements.  His father would like the child to live with each parent in an equal shared care arrangement of a week about nature however the mother would like to move from the Gold Coast to Melbourne and have [X] live primarily with her.

Background

1. The father is 39 years of age.  He was born in Serbia and migrated initially to New Zealand and then Australia as a young adult.  He has been previously married, whilst living in New Zealand but has no children to that relationship.  In recent years he has relied on Centrelink benefits but has also worked as a [omitted].  At the time of the trial he was completing his studies in [omitted].  He has not re-partnered.

2. The mother is 34 years of age and has migrated to Australia from the United Kingdom.  She is a [omitted] working for a large [omitted] in a suburb of Brisbane.  She has been with this company for over seven years commencing her employment with the company whilst living in Melbourne.  The mother has commenced a relationship with Mr V who lives in Melbourne.  He works for the same company as the mother.

3. The parties commenced a relationship in 2004 when the mother met the father whilst visiting Melbourne from the United Kingdom.  Soon after their meeting the mother moved in with the father and they lived with his parents in Melbourne.  They later travelled to the United Kingdom and lived for a while with the mother’s parents before returning to Melbourne and the home of the father’s parents.  They married in 2005.  The parties moved into their own home in 2008 and [X] was born on [omitted] 2010.  During 2011 the parties considered moving to Europe but later agreed to move to the Gold Coast.  The father travelled to Queensland in January 2012 to establish their new home while the mother remained living and working in Melbourne with the paternal grandparents providing assistance with the care of the child.  At around this time the mother suffered a miscarriage.  The mother and child moved to the Gold Coast in March 2012.  The parties separated in January 2013.  They remain living in the same suburb on the Gold Coast and the paternal grandparents have since relocated to the Gold Coast and live with the father.  A divorce order was made on 25 November 2014.

Competing Applications

1. The father filed his Initiating Application on 18 January 2013.  The parties were still living together at this time although they separated 3 days later.  The father sought in that application orders that would provide for him to have sole parental responsibility and for the child to live with him.  He proposed the mother have supervised time with [X].  His position at trial was significantly different.  He proposed the parties have equal shared parental responsibility and that the child live with the parties in an equal time arrangement.

2. The mother filed a Response on 6 February 2013.  She sought orders for the parties to have equal shared parental responsibility save for issues surrounding the child’s health.  The mother proposed she have sole parental responsibility for this issue.  She proposed that the child live with her and spend time with the father but did not particularise that time.  On 16 August 2013 the mother filed an Amended Response seeking the same parenting orders but that she be permitted to relocate with the child to Melbourne.  She also sought orders permitting her to travel to the United Kingdom for three to four weeks in May/June 2014 and permitting her to obtain an Australian passport for the child. 

3. At the final hearing the mother sought orders for her to have sole parental responsibility; that the child live with her in Melbourne and spend time with the father during school holidays if he did not also relocate to Melbourne.  As an alternative to the move to Melbourne the mother proposed moving to Brisbane.  She also proposed orders that would operate if the parties lived in the same city.  These provided for the child to live primarily with her but spend time with the father overnight each Wednesday to Thursday during 2015 and each alternate weekend Friday to Monday.  From 2016, when the child was due to commence school, she proposed the mid-week time not be overnight but that the child spend time with the father from 2.30pm to 6.30pm each Wednesday and Thursday afternoon and the weekend time be reduced to Friday to Sunday.

4. The father opposed the child’s move to Melbourne and the alternate move to Brisbane.  He did not consider it was feasible for him to relocate from the Gold Coast particularly to Melbourne.

Procedural History

1. When the matter first came before the court on 12 February 2013 orders were made for the child to live with the mother and spend time with the father each Wednesday overnight from after day care to before day care the following morning and on alternate weekends from Friday afternoon to Monday morning.  A child inclusive conference was ordered and a report subsequently issued.  The mother was ordered to provide the father with the names of three paediatricians and for him to elect one.

2. On 28 March 2013 the parties entered into detailed interim consent orders.  These orders provided, inter alia, for them to have equal shared parental responsibility; the child to live primarily with the mother and spend time with the father as follows:

   a)Each alternate weekend from 5pm Friday to 5pm Monday;

   b)Each alternate Monday from 6.30am to 5pm; and

   c)Each Wednesday from between 4.30 and 5pm until 5pm Thursday.

3. There was also provision for special days where the child would spend time with each parent as well as telephone communication.  Specific orders provided for the parties to attend with a certain doctor to see if that person would become the child’s treating general practitioner and for the parties to attend upon a doctor at the Allergy Medical Clinic in Brisbane.

4. A family report was ordered to be prepared on 21 August 2013 and was ultimately released on 29 November 2013.  Orders were made after a contested hearing on 6 December 2013 for an Australian passport to issue for the child and for the mother to travel with the child to the United Kingdom in May/June 2014.  There was also provision for the child to have make-up time with the father.  On 16 June 2014 the matter was listed for a two day final hearing to commence on 20 August 2014.  Both parties presented their cases without legal representation.

Issues

1. During the hearing it became apparent that along with the issues of with whom the child should live and where, the ability of the parents to communicate effectively and make decisions for the child, particularly about his health needs, remained a significant issue.

The Evidence

1. In support of his case the Applicant father relied on:

   a)His affidavit filed 25 July 2014 and

   b)A Notice of Child Abuse or Family Violence file 18 January 2013.

2. The mother relied on:

   a)her affidavit filed 25 July 2014;

   b)the affidavit of Mr V filed 24 July 2014;

   c)the affidavit of Ms E filed 24 July 2014

   d)the affidavit of Ms S filed 24 July 2014; and

   e)the affidavit of Mr W filed 8 February 2013.

3. Both parties relied on the affidavit of Dr H filed 15 August 2013.

4. The Court was also assisted by:

   a)The memorandum of Family Consultant R dated 8 March 2013;[1] and

   b)The family report of Family Consultant D released 29 November 2013.[2]

   [1] Exhibit C1

   [2] Exhibit C2

5. Tendered into evidence was a letter dated 29 July 2013 from Relationships Australia as to the father’s attendance at counselling,[3] and copy of the father’s student details with [omitted] Course.[4]

   [3] Exhibit F1

   [4] Exhibit F2

6. Both the mother and father gave oral evidence and were cross-examined as was the mother’s partner Mr V.  The mother’s other witnesses were not required.  Ms D also gave evidence.

7. Throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

8. Both parties and Mr V presented as honest and forthright witnesses.  Although the father and mother differed as to their recollections of some factual issues I was left with the impression that they each strived to provide their honest recollection which was no doubt clouded by their dispute.

9. When the parties separated in January 2013 they were in significant dispute as to [X]’s medical care.  The child had been suffering eczema since he was a baby and the parents were unable to agree as to how it should be treated.  The father was also of the view that the child was significantly underweight for his age.  They particularly disagreed as to which medical professional should be seeing the child.

10. The maternal grandparents were staying with the parties at the time.  The father became concerned that the mother was being assisted by them to leave and take the child to the United Kingdom.  He filed his application whilst the parties were still living together in part to prevent the child from being taken overseas.  The mother considered this to be the catalyst for the breakdown of their marriage after a number of years of difficulties.  After obtaining legal advice and with the assistance of her cousin’s husband and the maternal grandparents the mother took the child away from the former matrimonial home, an act the father considered to be kidnapping.  The mother did not make the child available to the father until orders were made by the court in February.  In doing so she was not in my view child focused.  Although the relationship break up was an emotional time for her, as it was also for the father, her decision to have members of her family attend on the family home to take belongings and the child and then withhold the child for some weeks until she had the benefit of a court order showed her to be more focused on a strategic advantage than ensuring appropriate care for the child.  The father had played a significant role in caring for the child at various times during the child’s life and it is disappointing to see the child did not see the father for some weeks.  This of course must be seen in the context of the breakdown of their relationship.  Fortunately the evidence suggests the parties have been able to comply with the interim parenting orders so that the child has been able to have a relationship with both parents.

11. One of the significant issues surrounding the breakdown of the parties’ relationship has been their different approach to the child’s health care.  The father has been concerned about the child’s weight since he was a baby.  Although the mother has conceded the child has at times been near the bottom of the developmental scale for children she does not believe he has ever been underweight.  The paternal grandmother appears to have played a role in informing the father’s view as to the appropriate weight for the child.  She had taken the child to doctors out of her own concerns for his weight when he was a baby without the mother’s knowledge or consent.  The mother complained that many of the difficulties experienced by the parties were brought about by, in her view, interference by the paternal grandmother. 

1. I am satisfied there is no evidence that this child is or has been underweight.  Dr H, consultant paediatrician provided the parties with three reports in 2013.  He noted the child’s weight in the reports without negative comment.  In his report dated 4 May he said there were no symptoms of malabsorption and in his 14 June report he said the child was of small size but was growing normally.

2. The child has suffered eczema since he was a baby.  The mother’s evidence is that this condition has worsened since their move to Queensland.  She described how the skin would become inflamed and the child would scratch it until he bled.  She arranged for the child to see Dr F who, she had heard, had undertaken special training in nutrition and provided a holistic approach to health care.  The father did not agree with this consultation and was strongly opposed to the non-dairy diet that was ultimately prescribed.  He took the child to see another doctor without the mother’s consent.  He believed this doctor supported his approach although the mother was of the view after speaking with the doctor that that was not the case.  I can make no finding as to the views of either of these doctors as there was no evidence from them before me. 

3. The father was so concerned about the mother’s care of the child in this regard that he reported his concerns to the Department of Child Safety on more than one occasion.  It is not surprising the relationship did not last when the parents have taken the child to see different medical professionals without the agreement of the other and where a party felt it was necessary to report the other parent to the child welfare authority.

4. On the first court date I made orders for the mother to provide the father with three names of paediatricians and for him to elect one.  The parties were to share the cost of the consultation. Six weeks after the making of those orders I made detailed orders by consent addressing the child’s health issues.  It is regrettable that the parties found it necessary to bind themselves by way of court order to overcome their disputes as to his medical care.  The orders read:

   “12. That within 7 days of the date of this Order, the mother shall schedule an appointment for both the mother and the father to attend with Dr B of [omitted] Medical Clinic to determine whether Dr B is to be the child’s treating GP.

   13. That within 7 days of the parties consulting with Dr B in accordance with Order 12 herein, the father shall advise the mother in writing whether he agrees to Dr B being the child’s treating GP pending further order of the Court.

   14. That in the event the father does not agree to appointing Dr B as the child’s treating GP, the parties shall use their best endeavours to agree upon an alternate GP on the Gold Coast for the child, with the child to thereafter only consult with this GP unless in the case of emergency or, in the event the appointed GP is not available to see the child, such other GP employed by that surgery.

   15. That in the event the parties are unable to agree upon an alternate GP within 7 days of the father providing notice to the mother in accordance with Order 13 herein, then pending further order of the Court, save in the case of an emergency, the parties shall only consult with Dr B in relation to the child (or such other doctor employed by [omitted] Medical Clinic in the event Dr B is not available to see the child).

   16. That within 7 days of the date of these Orders, the father shall schedule an appointment for both the mother and the father to attend upon a doctor at the Allergy Medical Clinic, [omitted].

   17. That the father shall be responsible for the costs associated with attending at the Allergy Medical Clinic, [omitted].

   18. That the parents shall follow the recommendations of the child’s treating health professionals, and shall use their best endeavours to ensure that any other person who is caring for the child shall follow the recommendations of the child’s treating health professionals.

   19. That the parents shall share equally the cost of the child’s treating health professionals, subject to Order 17 herein.

   20. That unless in a situation of emergency, only the parents shall attend upon the child’s treating health professionals in relation to the child, and the parents shall use their best endeavours to ensure that any Paediatrician/Dietician appointments are scheduled at a time when both parents are able to attend.

   21. That each parent shall be entitled to receive at their own request and expense any and all information relating to the health, education and welfare of the child, including but not limited to details of any illness suffered by the child and the treatment required. This Order shall constitute the requisite authority required by each child’s treating health professional and education provider to provide that information to both parents.

   22. That in the event that the child becomes ill or seriously injured whilst in the care of the either parent, that parent shall notify the other parent as soon as is reasonably practicable in the circumstances.

   23. That in the event that the child is prescribed medication or a particular form of treatment which is required to continue into period when the child is spending time and/or living with other parent, any medication or materials required for treatment of the child will be sent with the child, along with the description prescribed in writing by the treating practitioner of the condition for which it is required and the appropriate dosage or method of treatment.

   24. That the parents shall refrain from smoking in the presence of the child and the parents shall ensure that others do not smoke in the presence of the child.”

5. The child was assessed by the Queensland Allergy Services at [omitted] as having allergic reactivity to: egg; cashew nuts; dust mites; and cat dander. Although there was a small reaction to milk and beef it was not considered these would cause significant acute reactions in the child.  The parties were advised to watch flaring of eczema with these foods.  It was also noted that the child had a history of flaring of eczema with foods with high levels of natural chemicals such as strawberries, tomato and citrus.  The parties were advised that it was not necessary to strictly avoid these foods but only larger amounts.

6. The parties attended upon Dr B in accordance with the orders of 28 March 2013 and were referred to Dr H.  The three reports prepared by Dr H were annexed to his affidavit filed 15 August 2013.  He was not required for cross-examination.  The paediatrician was of the view that the child was developing normally and was well attended to by both parents.  He considered the child to be small in size but growing normally and his weight level was healthy.  He considered the child’s main problem to be eczema and proffered the view that the flare ups in this condition were likely related to environmental changes and natural fluctuation.  He gave the parents a treatment plan and discouraged the frequent use of oral steroids.  He observed the child’s history of asthma and considered it appropriate for him to use Ventolin.

7. Although the father initially attended with Dr B he quickly formed the view that Dr B and the clinic viewed him in a poor light and he refused to take [X] back there.  The mother relented to the father’s decision to take the child to another medical centre and he has now been attending two different doctors.  The mother, whilst frustrated by this, considered that if she is successful in moving to Melbourne or Brisbane there would be a need for the child to attend two doctors in any event so she set up an E-Health account for the child and arranged for the medical records from each surgery to be provided to the other.

8. The father tried to impress upon me that his ability to communicate with the mother had improved in recent times.  Whilst I accept that I was still left with the impression that the position of the parties in relation to the child’s medical care remains at odds.  The father was not in my view prepared to accept a view contrary to his.  Whilst the mother was likewise steadfast in her views she was at least open to the reality of the father’s determination and has done her best to accommodate that without stepping back from her desire to have the child treated at Dr B’s clinic.  Any further compromise is unlikely despite an overall improvement in communication between the parents.  This may have adverse consequences for the child’s health in the future.  The family report writer expressed her concern as to these consequences and recommended the court give consideration to this issue when determining parental responsibility.  Having said this I was impressed to read in the mother’s affidavit that when the child required hospital care in August 2013 and January 2014 that both parents could discuss the child’s situation appropriately and they were both at the hospital.

9. Since the child was born there have been varying arrangements for his care.  The mother initially took maternity leave to primarily care for [X] but returned to part time work, three days a week when he was about 10 months of age.  She resumed full time work two months later.  The father took on a greater role in the care of the child at this stage although the child also started attending day care two days a week.  The parents also had assistance from the paternal grandparents who cared for him one full day a week and collected him from day care.  This arrangement did not last long.  The father took on the role of full time parent with assistance from his parents after about one month.  When the parties moved to the Gold Coast the father began working as an [omitted] and the child attended day care.  Outside of the day care hours both parents provided care for the child.  The father is critical of the mother’s decision to place the child in day care since separation when he is available on those days.

10. I am satisfied that both parents have played a significant role in the hands on care of this child.  The observations from the family report writer suggest the child has a happy and relaxed relationship with each parent, which may be consistent with their extensive care of him.  There was a time after separation when the child was reluctant to go back to the mother after spending time with the father however that has now settled.

11. Although the mother lives on the Gold Coast she works in [omitted] in Brisbane necessitating a daily commute of about 75 minutes each way by car.  Although she has been able to make arrangements with her employer for more flexible working hours to enable her to take the child to and collect him from child care she said this flexibility cannot be guaranteed in the long term.  She did not provide any corroborative evidence in this regard.

12. The mother would like to move to Melbourne to live with her partner and is confident of obtaining a transfer with her employer.  Something she achieved in her move to Queensland.  Annexed to her trial affidavit was a letter from the [omitted] manager for the Melbourne [workplace] of her employer acknowledging her credentials and experience would be valuable to his team in Melbourne.  He did not go so far as to offer her a position.  He indicated he would recommend her for a position if one became available.  Although I did not have any sworn evidence from her employer I am satisfied that whilst the mother does not have any particular job offer she has some good prospects of obtaining employment with her current employer at some future date in Melbourne.

13. I accept the mother’s evidence that she has looked for work in the Gold Coast area without success.  I also accept she experiences difficulty juggling her work and parenting commitments given the extent of commuting she is currently required to do.

14. The mother proffered as an alternative to the move to Melbourne that she be permitted to move to Brisbane to be closer to her current work place.  If I was to make such an order she is agreeable to living on the south side of the city so as not to make it too onerous on the father spending time with the child should the child live primarily with her.  Her partner indicated that he would seek to transfer to Brisbane or look for similar work there if this eventuated.  He was not confident of obtaining work on the Gold Coast.  The mother gave evidence, which I accept, of having friends but no family in Melbourne.  She has some family support on the Gold Coast.

15. The father’s evidence was that he could not afford to re-locate back to Melbourne and rejected the mother’s suggestion that he would do so if she was living there.  He also said he has trained for work as a [omitted] under the Queensland rules.

16. The family report writer interviewed the parents and observed the child with them. She was not aware the mother had formed a new relationship and therefore did not have the opportunity to interview

    
    

    Mr V.  Ms D opined that both parents were able to meet the child’s basic daily care needs and that the child had a positive relationship with each of them.  As I indicated earlier she was concerned about their ability to reach agreement on the child’s medical needs.  The report writer recommended against the child’s move to Melbourne as contrary to the child’s best interests.  I will address the basis for that recommendation when I consider the various s.60CC factors below.

Legal Principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[5] and must consider the best interests of the child as the paramount consideration.[6]  Whilst that is the paramount consideration it is not the only consideration.  In AMS and AIF his Honour Justice Kirby held: [7]

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

   [5] S.60B

   [6] S.60CA

   [7] (1999) 199 CLR 160 at page 207 [144]; 24 Fam LR 756 at page 792

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

3. The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[8]  Section 60B(2) sets out the principles underlying those objects.  Unless it would be contrary to a child’s best interests the principles are:

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

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

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

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

   e)Children have a right to enjoy their culture.

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

4. The legislative framework which must be followed in all parenting cases,[9] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[10]  This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[11]

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

   [10] S.61DA

   [11] S.61DA(2) & (4), Mellick and Mellick [2014] FamCAFC 236

5. For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[12]  Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[13]  When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[14]  A major long-term issue in relation to a child means an issue:

   [12] S.61B

   [13] S.61C

   [14] S.65DAC

   about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a) the child’s education (both current and future); and

   (b) the child’s religious and cultural upbringing; and

   (c) the child’s health; and

   (d) the child’s name; and

   (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[15]

   [15] S.4

6. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents.  In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[16]  If the court finds that equal time is not in the child’s best interests or  that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[17]

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

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

7. This legislative approach must be followed in all parenting cases.[18]  This particular case has as one of its elements the issue of relocation.  Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others.  The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[19]  In Taylor v Barker[20] their Honours Bryant CJ and Finn J said:

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

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

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

   [20] (2008) 37 Fam LR 461 at page 475

8. Their Honours went on to say:

   [83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.  Not to approach a case involving a relocation proposal  in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a  case to spend “equal time” or substantial and significant time” with each parent.[21]

   [21] ibid at page 480

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

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

The children’s relationships

The benefit to the child of having a meaningful relationship with both of the child’s parents;[22]

[22] S.60CC(2)(a)

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);[23]

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

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[24]

The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from:

[24] S.60CC(3)(c)

(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[25]

[25] S.60CC(3)(d)

1. There is no dispute that both parents love their son and that he has a good relationship with each of them.  This has no doubt been built up over time as a consequence of each of the parents taking on significant care of the child throughout his life.  The interim orders that have been in place since March 2013 have been complied with and have seen the child live primarily with the mother but spend substantial and significant time with the father.  The child has been with the father from Friday afternoons to Monday afternoons each alternate weekend as well as the other Monday from 6.30am to 5pm and every Wednesday afternoon to Thursday afternoon.

2. The father is concerned that should the mother relocate to Melbourne with the child, and to some extent even Brisbane, the child’s relationship with him will be compromised as a consequence of a significant reduction in time that would necessarily follow.  The family report writer shared this view.  The mother on the other hand was confident that the relationship could be maintained.

3. I have no doubt that the child’s relationship with each parent is meaningful to him.  Brown J in Mazorski v Albright[26] considered ‘meaningful relationship’ as follows:

   [26] ………I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive one.  Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.

   [26] (2008) 37 Fam LR 518 at 526 [26]

4. The relationships this child has with each parent are important, significant and valuable to him.  The report writer considered the mother’s proposed move to Melbourne to be contrary to the child’s best interests.  She considered that a significant reduction in the child’s time with the father may compromise the child’s emotional wellbeing.  In her view, at this point in time, the child needs predictability, stability and continuity of care, which would not be afforded him if he relocated away from his father.  During her oral evidence she said that the child being four years of age was at a critical developmental stage and his capacity to maintain a relationship with the father would be compromised if he was to move so far away as to not see his father weekly or at the very least fortnightly.  Ms D accepted that as the child grows older he will be able to cope with changes in his care arrangements but she cautioned a gradual implementation of those changes.

5. The mother argued that the father would likely follow her to Melbourne as he would have nothing keeping him in Queensland and therefore I should not be worried about any significant reduction in the child’s time with the father.  I accept the father’s evidence that he would find the move financially difficult.  He has made a new life in Queensland and would be unlikely to move back to Melbourne.  The paternal grandparents have also moved to the Gold Coast.  If the father does remain living in Queensland and the mother and child live in Melbourne the geographic distance means it will not be possible for this child to see his father each week or fortnight.  Whilst extended holiday periods in Queensland would go some way towards the child having a relationship with the father I accept the opinion of the family report writer that given the child’s young age there would be a risk of the child suffering some emotional harm by not seeing his father as regularly.  The situation may have been different if the child was a few years older and more able to spend longer time periods away from the father.

6. The mother’s alternative plan of moving to Brisbane however, will afford the child the opportunity to maintain weekly or at least fortnightly time with the father.  This would enable the child to maintain his father/son relationship albeit with some adjustment to accommodate the practical difficulties the parents may face in ensuring the child is able to move between both homes.  Although the father is wedded to remaining on the Gold Coast if the mother and child are living on the south side of Brisbane he may not find moving closer to the mother’s residence as financially draining as a move to Melbourne. 

7. The paternal grandparents also live with the father and a move to Melbourne would see the child’s relationship with them compromised.  They have played a significant role in his care over the years.  A move to Brisbane would not cause the same disruption to that relationship as a move to Melbourne would.  The maternal grandparents also have a relationship with the child developed over the years from visiting Australia.  That relationship is unlikely to be as strong as the paternal relationship, given their visits have been for block periods rather than consistent and regular weekly time.

8. The father sought orders for the child to live with each parent on a week about basis.  Obviously that would not be reasonably practical if the mother was to live in Melbourne and given the child will soon be approaching his school years it would be unlikely to be reasonably practical if the mother was to live in Brisbane and the father was to remain living on the Gold Coast.

9. A consideration of these factors suggests that the mother’s move to Melbourne with the child would not be in his best interests, however a move to Brisbane should not necessarily compromise the child’s relationships with the father and the paternal grandparents.  Therefore at least in relation to the mother’s two proposals her alternative one is to be preferred.

Risk of harm

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[27]

Any family violence involving the child or a member of the child’s family[28]

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:

[27] S.60CC(2)(b).  S.60CC(2A) provides that in applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).

[28] S.60CC(3)(j)

a)The nature of the order;

b)The circumstances in which the order was made;

c)Any evidence admitted in proceedings for the order;

d)Any findings made by the court in, or in proceedings for, the order;

e)Any other relevant matter [29]

[29] S.60CC(3)(k)

1. The father filed a notice of risk of abuse when he initiated his application in January 2013.  In doing so he raised a number of concerns as to the mother’s care of the child’s health needs.  I have set out his concerns above.  I am not satisfied this child is at risk of harm with the mother in relation to the way in which she has attended to his health needs.  The inability of the parents to agree on a common approach to the child’s eczema however may pose a risk to this child’s emotional wellbeing in the longer term.  Notwithstanding their disagreements of this important issue, there is no evidence that either of them is neglecting his needs.

2. I am satisfied that there are no allegations of family violence or child abuse to cause any concern for this child’s wellbeing.

The child’s views

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[30]

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

1. [X] is four years of age and appropriately has not been interviewed to ascertain his views.

Practical difficulties

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[31]

[31] S.60CC(3)(e)

1. A move to Melbourne would pose some significant practical difficulties to enable the child to spend time with the father.  Although logistical difficulties such as making arrangements for flights and collection at airports could be overcome, the cost implications for the parties cannot be ignored.  The mother, no doubt keen to bolster her case, proffered to pay for all of the costs associated with the child travelling to Queensland.  Without evidence as to her likely earning capacity if she was successful in obtaining a transfer to Melbourne I cannot be confident she would be able to afford this significant cost.  Given the child’s young age he would not yet be able to travel unaccompanied further adding to cost.  The mother’s alternate proposal of moving to Brisbane would not impose significant cost burdens on the parties.  The mother would also have less petrol costs given her daily commute would be reduced.

2. There would be no significant practical difficulties if I accepted the father’s case and ordered a week about arrangement other than the difficulties the mother would have in arranging day care and in the future out of school hours care during her working day.

Parental capacity and responsibility

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[32] 

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child[33]

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents[34]

[32] S.60CC(3)(f)

[33] S.60CC(3)(ca)

[34] S.60CC(3)(i)

1. This child is fortunate to have two parents who are committed to and are able to meet his day to day needs.  Although they have disagreed significantly about his medical care there is no evidence to establish the child has been harmed by either of their approaches.

2. It might be said the father’s opposition to the mother taking the child to the United Kingdom this year showed a poor attitude to the child’s needs.  I am not so critical.  There is a lack of trust between these parents.  It is not surprising he took the view he did especially when the mother was seeking to move away from the Gold Coast.

Background issues

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[35]

[35] S.60CC(3)(g)

If the child is an Aboriginal child or Torres Strait Islander child:

a)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

b)the likely impact any proposed parenting order under this Part will have on that right[36]

[36] S.60CC(3)(h).  S.60CC(6) provides that for the purposes of paragraph (3)(h), that an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture

1. The child has a Serbian background through his father and an English background through his mother.  I am confident they will ensure the child receives an understanding of his background whilst he is in their respective care.  The mother was sceptical of the father’s assertion that he would like to take the child to Church on a regular basis but I accept the father’s evidence that he has re-engaged with his church on the Gold Coast.  This church, being the Serbian Orthodox Church will also assist the child in an understanding of his cultural background.

2. The mother argued that the child would have the same opportunity in Melbourne, which is no doubt true, but only if the father was to also move to Melbourne.

Limiting further proceedings

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[37]

[37] S.60CC(3)(l)

1. The mother is deeply unhappy living on the Gold Coast.  If the current arrangement was to continue it is highly likely the parties will be addressing the same issues again in a few years’ time when the child is older.  A move to Brisbane may go some way toward limiting the risk of that.

Presumption of Equal Shared Parental Responsibility

1. There is no history of family violence or child abuse and therefore I am satisfied the presumption of equal shared parental responsibility applies. 

2. The need for detailed orders on 28 March 2013, addressing the child’s medical issues, and their dispute as to the child obtaining a passport and travelling overseas suggests these parents have not had the capacity to communicate effectively to make decisions for this child.  That however must be seen in the context of the break-up of their relationship.  Whilst not yet ideal I am satisfied there has been improvement in their ability to communicate.  The mother’s evidence of the calls in relation to the child being admitted to hospital are but one example that give me some hope that when necessary these parties can put aside their differences and communicate civilly for the sake of the child.  Being able to communicate is one thing.  Being able to address their differences sufficiently to reach agreement on important issues is another.  The mother sought an order for sole parental responsibility and was particularly concerned about medical issues.  Whilst I understand why the mother has sought such an order, I am not satisfied that their level of dispute on this issue is so great as to warrant the exclusion of one parent from the decision making process. 

3. There is no evidence to vindicate either party’s approach to caring for the child’s eczema.  The mother believed the child had an allergy to dairy products among other things but the evidence from the Allergy Clinic and Dr H suggested the dairy product issue was only mild.  Whilst the father’s distrust of the general practitioners selected by the mother and agreed to by him in the orders of 28 March 2013 is disappointing he has at least ensured the child has seen a medical practitioner with whom he is comfortable.  The mother, to her credit, recognised the father was unlikely to change his mind and was child focussed in accommodating his position and made appropriate arrangements for the medical records to be shared between the two medical clinics.  The mother was pragmatic in recognising that if they lived in different cities the child will need different doctors in any event.

4. On balance I am satisfied the parties have the capacity to talk through their issues and make appropriate arrangements for the child’s medical care.  The presumption has not been rebutted.  I am also satisfied the child would benefit from having both parties making joint decisions as to his long term care.  I will make an order that they have equal shared parental responsibility.

Consideration of Equal Time or Substantial and Significant Time

1. Having indicated that I will make an order for equal shared parental responsibility I must commence my consideration of the child’s living arrangements as to whether it is in his best interests and reasonably practicable for him to be parented by the parents in an equal time arrangement.  The mother’s primary proposal is for her and the child to live in Melbourne.  Obviously it would not be reasonably practical, given the geographical distance, for the child to live with the parties in an equal time arrangement if the father remained living on the Gold Coast.  I have already found the father is unlikely to move to Melbourne.  In my view the same would apply if the mother was living in Brisbane and the father remained living on the Gold Coast.  The child is fast approaching his school years.  It would not be reasonably practicable for him to live both on the Gold Coast and in Brisbane.  If the parties were to remain living in their current localities or in the event the mother moved to Brisbane and the father moved close to where she lived the geographical issue would not arise and at least in that sense it could be said to be reasonably practical.

2. In determining whether an equal time arrangement would be in the child’s best interest I adopt the approach taken by Federal Magistrate Ryan, as her Honour then was, in T & N[38] where it was said that the following factors should be considered:

   [38] (2004) 31 Fam LR 281

   a)The parties’ capacity to communicate on matters relevant to the child’s welfare;

   b)The physical proximity of the two households;

   c)Whether the homes are sufficiently proximate so that the child can maintain friendships in both homes;

   d)The prior history of caring for the child, and whether the parties have demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment;

   e)Whether the parties agree or disagree on matters relevant to the child’s day to day care, diet and sleeping pattern;

   f)Whether if the parties disagree on the these matters there is a likelihood that they would be able to reach a reasonable compromise;

   g)Whether they share similar ambitions for the child, for example as to religious adherence, cultural identity and extra-curricular activities;

   h)Whether they can address on a continuing basis the practical considerations that arise when a child lives in two homes;

   i)Whether each party respects the other party as a parent;

   j)The child’s wishes and the factors that influence those wishes; and

   k)Where the child’s siblings live.

3. I have already addressed the difficulties the parties have had in communicating and although I am satisfied there has been improvement I am not satisfied it has reached a level sufficient to enable an equal time arrangement to work without negatively impacting on the child’s welfare or ultimately breaking down.  Parents have to be able to communicate well when sharing the care of a child so as to ensure the practical day to day needs are met between the two households.  This requires a different level of communicating than that required for making long term decisions.  Given these parents have different approaches to the day to day needs of the child particularly surrounding diet and medical care there are likely to be ongoing problems if they are to share the care of their son.  They also appear to have different approaches to the child’s religious upbringing although I did not detect that to be a major issue.  Although when these proceedings commenced the father did not have much respect for the mother as a parent I am satisfied that they both now have respect for each other in that role.

1. On balance I find that, at this point in time, it would not be in this child’s best interests for the parents to have equal shared care of the child even if they were to be living in close proximity after the making of these orders.

2. Having made that finding I am required to next consider whether it would be in the child’s best interests and reasonably practicable for the child to live in the primary care of one parent and spend substantial and significant care with the other parent.  Substantial and significant time is defined by s.65DAA(3) as follows:

   “(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)the time the child spends with the parent includes both:

   (i)days that fall on weekends and holidays; and

   (ii)days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)the child’s daily routine; and

   (ii)occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”

3. Similarly to my consideration of reasonable practicability in an equal time arrangement I am also satisfied that it would not be reasonably practicable for a substantial and significant time order if the mother was living in Melbourne and the father remained living on the Gold Coast.  This issue may not be so pronounced if the mother was living on the south side of Brisbane as the father would still be able to spend time with the child on weekends and subject to his work commitments, spend some time mid-week with the child after school.

4. If the parties were living in close proximity this arrangement would be both in the child’s best interests and reasonably practicable.  I am satisfied as to the best interests element because, although the similar issues that I considered when I determined that equal time was not in the child’s best interests still apply the difficulties that might arise would not be as acute as the child would have a primary home providing him with a secure base.  He would also be able to maintain his relationship with his non-primary carer by having frequent periods of time with that parent.

Discussion

1. The mother’s desire to move to Melbourne is understandable.  Her partner lives there and she has friends who have children of a similar age to [X].  She is confident of getting work with her current employer although there is no guarantee of that.  The court must be sensitive to the desires of parents to live and work where they wish.[39]  There is no requirement for any parent to demonstrate “compelling reasons” why they want to live where they propose whether that is to move or to stay.[40]  When making a parenting order however sometimes the legitimate desires of parents must give way to the best interests of children.[41]  In this case, whilst I have much sympathy for the mother’s application to move I am satisfied that if the child was to live primarily with the mother in Melbourne his relationship with the father would be compromised.  His best interests require him to see his father more regularly than such a move would allow.  It was pleasing to see the mother was child focussed in her commitment to remaining in Queensland with the child if the child was not permitted to relocate to Melbourne.

   [39] Adamson & Adamson [2014] FamCAFC 232

   [40] AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238, Adamson & Adamson ibid

   [41] Kirby J, AMS vAIF ibid at [144]

2. The mother’s alternate proposal of moving to the south side of Brisbane is to be preferred for reasons I have already touched on above.  Such a move would enable her to set up home closer to her employment bringing financial and time savings by the reduction of commuting which in turn would also enable her to spend more time with the child before and after work.  By moving only around one hour from where the mother currently lives will enable the child to still see the father regularly and thereby maintain his relationship with him.

3. The father’s stated proposal of an equal time arrangement has already been addressed above.  I am satisfied such an arrangement would not be in the child’s best interests even if the parties were living in close proximity to each other.

4. Although not specifically argued before me I have also given thought to whether the child’s primary residence should be with the father.  I am not persuaded that that would be in this child’s best interests.  The father has played a significant role in caring for this child including periods of time when he was the primary carer.  Since separation however the child has lived primarily with the mother, although he has spent substantial and significant time with the father.  To alter his primary care arrangement from the mother to the father would not be in his best interests at this point in time.  I propose therefore to order that the child live primarily with the mother.

5. Given the mother’s alternate proposal would see the child maintain his relationship with the father there is no reason why the court would restrain the mother from moving from the Gold Coast to the south side of Brisbane.  For the reasons I have set out in this judgment I am satisfied such a move would be in the child’s best interests.  I propose to make an order that would enable the mother to do so but will set boundaries as to where in Brisbane she may live with the child so as to ensure the child will be able to see the father mid-week if the father’s work commitments permit and to maximise the possibility of the child being able to be with the father for the whole of alternate weekends and not face too much travel back to the mother’s or school.  The boundary I propose, as was discussed with the parties when the matter was before me, would be south of the Brisbane River and no further west than Forest Lake.

6. The current arrangements should continue until the mother relocates which may take some time.  In any event there should be no change until the commencement of the next school year and for this reason the orders I will make will provide for a continuation of the current orders until 26 January 2015 or when the mother relocates whichever is the latter.

7. I propose to order that the child spend time with the father each alternate weekend from after kindergarten/school Friday to before kindergarten/school Monday each alternate weekend or in the event the father is not able to deliver the child to his kindergarten or school on Monday mornings to 6pm Sunday.  In the event that Monday is a public holiday the time will be extended to the Tuesday morning or Monday afternoon whichever is applicable.  I also intend to order that the father have liberty to spend time with the child from after kindergarten/school each Wednesday until 6pm.  The father may not be able to avail himself of this liberty if his work and travel commitments do not permit but if it is possible I am satisfied the child would benefit by this time.  It might be that the father is able to be there on another day during the week and the parties should use some flexibility in that regard.

8. Although the father dismissed any suggestion he would move to Melbourne he may well move closer to Brisbane once the child has moved so I will make provision for different spend time with arrangements should that eventuate.  I propose to order in the event that the father lives within a half hour drive of the mother’s residence the child spend time with the father from Thursday afternoons to Monday mornings each alternate week and for the Thursday night in the other week.  The reason for the Thursday night in the other week is to maintain consistency in arrangements so that the child has every Thursday night with the father.  The Thursday night would be overnight rather than for the few hours after school as the travel distance would have been reduced by the father’s move closer to the mother’s residence.  This would also enable the father to be involved with the child’s education by making sure he arranges for the child to get to school on time and by helping him with his homework.  The mother’s proposal would have seen the child’s time with the father decrease when he started school by removing the overnight times during the week clearly aimed at avoiding any midweek disruption to the child.  No one is able to predict how the child will adjust to schooling.  I propose to place greater weight to the child’s relationship with the father than any potential risk to that adjustment.

9. The order I will make will see that the father only has to move to within a half hour drive of the residence the mother at the time he moves to Brisbane so as to avoid any future dispute of the mother moving beyond the half hour drive after the father has made the move.

10. I will make provision for the child to spend school holiday time with the parents once he has started his prep year.  Ordinarily I would adopt a prudent approach for young children in their first couple of years at school and order they spend the long holiday at the end of the year on a week about basis so that they are not away from their other parent for a lengthy period.  This child has however already spent time away from the father when the mother took the child overseas earlier this year and away for the mother for an extended period when he holidayed with the father while the father’s brother visited Australia.  I am satisfied it is not necessary to make a specific order in relation to this.

11. The mother sought orders in relation to the parties holidaying with the child both overseas and in Australia.  In light of the fact the parties have already needed the assistance of the court to determine overseas travel it is appropriate to make orders should such circumstances arise.  I do not however consider it necessary for the court to make specific orders in relation to interstate travel which can be taken during the school holiday periods when the child is with the parent intending to travel.  Although the orders for school holiday periods will not come into effect until 2016 I am satisfied that the parents will be able to make appropriate arrangements during 2015 without the need for specific orders.  I accept the mother’s submission that the child’s passport should be retained by the court given neither party is legally represented and that each party has migrated to Australia with family overseas.  There remains a level of mistrust between them such that an independent body should hold the passports.

12. For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Associate: 

Date: 11 December 2014