LATHAM & SLOANE

[2014] FCCA 473

FEDERAL CIRCUIT COURT OF AUSTRALIA

LATHAM & SLOANE [2014] FCCA 473

Catchwords:
FAMILY LAW – Relocation – current “substantial and significant time” regime for 12 year old – mother seeks to relocate to Victoria to Queensland – father seeks “equal time” – poor relationship between parents.

Legislation:

Family Law Act 1975

Federal Circuit Court Act 1999

Federal Court Rules 2001

AMS & AIF (1999) CLR 160
Taylor & Barker (2007) FLC 93-345
Paskandy & Paskandy (1999) FLC 92-878
MRR & GRR (2010) 240 CLR 461
Sealey & Archer [2008] FAMCAFC 142
Starr & Duggan [2009] FAMCAFC 115
McCall & Clark (2009) FLC 93-40

Applicant: MS LATHAM

Respondent: MR SLOANE

File Number: DGC 861 of 2010

Judgment of: Judge McGuire

Hearing dates: 3 & 4 March 2014

Date of Last Submission: 4 March 2014

Delivered at: Melbourne

Delivered on: 4 April 2014

REPRESENTATION

Counsel for the Applicant: Mr McFarlane

Solicitors for the Applicant: Remington Wright & Co

Counsel for the Respondent: Mr King

Solicitors for the Respondent: Rose Lawyers

ORDERS

1. All extant orders in respect of the child X (“X”) born (omitted) 2003 be discharged.

2. The parents have equal shared parental responsibility for X.

3. X live with the mother and she be permitted to relocate his primary place of residence to (omitted), Queensland.

4. X spend time and communicate with the father as follows:

   (i)For the Queensland gazetted Term 1 and Term 2 school holidays from the first Saturday until the last Friday;

   (ii)For one half of the Queensland gazetted Term 3 holidays from the first Saturday until the second Sunday;

   (iii)For four weeks in the Queensland gazetted summer holidays – such time to commence on or before 24 December in 2014 and each alternate year thereafter and not to commence before 26 December in 2015 and each alternate year thereafter;

   (iv)At any reasonable time and upon not less than seven days notice to the mother in writing when the father is on or at (omitted) in Queensland;

   (v)Such other times and variations of the above as may be agreed between the parties from time to time in writing;

   (vi)At any reasonable time by telephone, Skype or any other media with the mother at her own expense to install and provide Skype facilities in her home if requested by the father;

5. For the purposes of X spending time in Victoria with the father:

   (a)then the father shall book and pay for X’s airline tickets;

   (b)the father shall provide a copy of the itinerary to the mother not less than 21 days prior to each travel event; and

   (c)the mother to reimburse the father for one half of the costs of X’s airline travel within seven days of being provided with evidence of payment thereof by the father.

6. These orders entitle to each of the parents full access to and provision of all information usually given to parents by schools, medical practitioners or other professionals in respect of children.

7. Each party keep the other advised of any appointments made for X with any medical practitioner, counsellor or similar but that neither party take X to any particular psychologist or counsellor without giving the other party 21 days prior notice in writing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 861 of 2010

MS LATHAM

Applicant

And

MR SLOANE

Respondent

REASONS FOR JUDGMENT

1. The application before me is in respect of the one child of the parties, being X (“X”), born (omitted) 2003 (aged 10 years).

2. The application has been placed in the pilot project of the Relocation List in Melbourne in that the major issue between the parties is the mother’s wish to relocate with X to live on the (omitted) in Queensland.  That application is opposed.  The father responds by seeking a week-about care arrangement for X between the parents and in Melbourne.

3. Pursuant to parenting orders made in July 2010, X lives primarily with the mother, but spends five nights per fortnight with the father, being a long-weekend fortnightly from the Wednesday until the following Monday morning, together with the alternate Wednesday evening until 7.30 pm.  Orders provide for school holidays to be shared and for time on special days.  The parties live relatively proximate in the Melbourne suburb of (omitted).  X attends a local school.  The parents agree that X has suffered some learning problems compounded by his dyslexia.  He has also suffered some bullying difficulties at his school, resulting in a loss of self-esteem and confidence.  He was taken by the father to a psychologist, Dr K during 2011 and 2012.  The father’s evidence is that the initiative for these visits was to assist X in assimilating into his household with the intervention of infant children.  The sessions with the psychologist developed to deal with X’s learning and personal issues at school. 

The applicant’s mother’s case

1. The mother has re-partnered with Mr L.  They are engaged to marry. He is a (occupation omitted) on an income of approximately $200,000 per annum.  He works on a 28 day on 9 day off roster and travels from Brisbane to (omitted) Queensland.  The mother and Mr L wish to marry and start their own family.  They argue that it is not a reasonably practicable option for him to move to Victoria despite him previously living here and having connections to a family (omitted) business in (omitted) Victoria.  He could not achieve his current income by working in Victoria.  He has two children himself who live in Queensland and he has them with him on his nine days off.  Mr L is, on the evidence, committed to supporting or contributing to the financial support of the mother and X, thereby alleviating the need for the mother to work full time as she does now in Victoria.  It follows that the mother says that she would be grossly unhappy and feel “trapped” if required to remain living in Victoria should the Court not agree to the relocation of X.  She is of the view that her relationship with Mr L would fail, although he is not so unequivocal in his evidence.

2. The mother also relies on the caustic relationship between she and the father.  She refers to the family reporter’s observations of the manifest negative effects on X of that highly-conflicted relationship between the parents and says that the regular changeovers that currently occur for X between his parents cause him difficulties or anticipated difficulties.  She refers to the apparent consensus as to X’s sensitive and anxious nature and says that her proposal, which allows X to be settled and stable living with her in Queensland and having block periods of time with the father in Victoria in school holidays, will diminish or alleviate altogether these effects on X.  The mother says that she can provide in Queensland for all of the requisite professionals needed to address X’s difficulties, including his learning and behavioural problems.  She says in any event that those problems have been addressed and there has been significant improvement for X.

The father’s case

1. X currently spends five nights each fortnight with the father.  This is a shared care arrangement which could not continue on the mother’s proposal.  Further, the father argues that the time for X with him proposed by the mother is of such a significant difference to the status quo that the nature of the relationship of child and father will be negatively impacted.  Prior to the current arrangement, X lived equally between his parents and indeed the father proposes that such a week-about regime be resurrected.

2. The father argues that his ability to participate flexibly and spontaneously in X’s schooling and extracurricular activities would be all but lost on the mother’s proposal. 

3. Mr Sloane has two infant children in his family unit together with his current wife.  He says that X is a part of that family and is in the process of establishing sibling relationships with the two toddler and infant children in that home.  He fears that the significant gaps in his time with X as proposed by the mother would not allow those relationships to fully develop and would in any event, give X the status of “visitor” to the home rather than being a member of the household as he is currently viewed.

4. The father questions the objectivity of and ability of the mother to prioritise X’s needs over her own.  In this sense, he questions the mother’s move to a relationship which for practical purposes, occupies only nine days out of each five or so weeks, together with the recent, irregular and infrequent relationship with Mr L to be a dubious recipe for longevity, such as should be weighed against the obvious detriments and losses for X in such a move.

5. The father argues that X’s learning and emotional problems are best dealt with by professionals in Melbourne and questions the commitment of the mother to attend to them if she is permitted to move and hence the direct contact between X and his father becomes much less frequent.  To this end, Mr Sloane relies on a report not on affidavit but annexed to his own affidavit from a Dr K which recommends against the mother’s proposed relocation.

The evidence

1. The mother relied on her two affidavits and was cross-examined.  A proof of evidence was provided from the mother’s partner, Mr L.  That proof is taken as an exhibit.  Mr L gave evidence by telephone and was cross-examined.

2. The father also relied on two affidavits.  He adduced evidence from his wife, Ms N.  She was not required for cross-examination.

3. Dr M provided a family report and attended for cross‑examination.  That report is dated 13 February 2014 and prepared after interviews and observations of the parents and X on 20 January 2014 and a telephone interview with X’s school on 13 February.

The relevant law

1. Mr Sloane volunteered in the witness box during cross-examination his understanding of the difficulty confronting the Court in matters involving a proposed relocation of a child.  He was able to recognise that whatever the determination of the Court, one or other of the parents will be left grossly upset and aggrieved by the result.  If the relocation is permitted, then the remaining parent will suffer a great sense of loss.  The nature of the relationship between the child and that parent will almost surely be changed in its frequency and regularity.  Relationships for the child with extended family members will be changed in their nature.  Feelings of loss will be often accompanied by a sense of bitterness to the parent successful in the application.  Settled family units will be disturbed by the need to cater for unexpected, unwanted and often onerous and expensive “time with” arrangements. 

2. Conversely, an unsuccessful applicant to relocate will suffer a similar loss and bitterness.  Feelings of blame might usually be put upon the other parent.  A parent forced to remain against their preference will usually do so unhappily.  Their expectations and ambitions are thwarted or unfulfilled.  Potential new relationships can be lost, career ambitions might suffer.  Unhappiness might descend into emotional illness and with a negative impact on the parenting capacity and then vicariously on the child.  The more common parenting cases involve “grey areas” of subtle consideration and manipulation.  In theory, both parents could leave such a trial without relative unhappiness.  Such is not the case with matters involving a relocation.  There is inevitably a sense of “win” or “lose.”  There is little or no room for subtle construction in orders. 

3. Importantly, the jurisdiction of this Court coming from the Family Law Act 1975 (“The Act”) is first and foremost in respect of children. Whilst a Court can allow or prevent the relocation of a child, it cannot usually, per se, prevent the freedom of movement of an adult. Such has been recognised some time ago by the High Court[1] which obliges trial judges to consider the “right” of freedom of movement of an adult.  The difficulty for the Court and the litigants, however, is that the same Court stated that parents may only enjoy such freedom of movement as is compatible with the best interests of their children and compatible with their obligations to those children.  Nevertheless, in many parenting matters involving a relocation, the primary parent commits to remaining in their current locality should the court not accede to the relocation of the child.  Such is the situation now before me. 

   [1] AMS & AIF (1999) CLR 160

4. The Act itself is silent as to the notion of relocation. It follows that relocation is expressly neither prohibited by law nor is there a presumption against it. That is a proposal by a parent to relocate a child whether that be internationally, interstate or intrastate, is simply one factor to be considered among many others in arriving at orders which, on the balance of the probative evidence and the parties’ proposals, is in the best interests of the child.

5. The significant amendments to the Act in 2006 enlivened judicial and academic debate as to the impact, if any, of those amendments on historical authorities in respect of relocation of children.  Subsequent Full Court authority suggests that the extraction of relevant principles by previous superior Courts remains valid.  Similarly, the Full Court in Taylor & Barker[2] confirmed the authority of a pre-amendment Full Court in Paskandy & Paskandy[3] to the effect that there can be no dissection of a parenting matter into discrete issues of, firstly, who the child shall live with and then a further or separate issue as to whether a relocation should be “permitted.”  The former Court observed:

   In our view, his Honour dealt with the relocation proposed in the context of his considerations of S60CC and S65DAA, at least insofar as it was possible to do so.  It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the S60CC matters;  however, as we will shortly explain, such a proposal now also needs to be considered in the context of S65DAA.[4]

   [2] (2007) FLC 93-345

   [3] (1999) FLC 92-878

   [4] See n2, at para 60.

6. The peculiarities of matters involving relocation saw the High Court in MRR & GRR[5] emphasise the dual requirements of parenting orders to be both in the child’s best interests and “reasonably practicable.”  Such considerations are important where trial judges are legislatively mandated (upon a finding of equal shared parental responsibility in parents for their children) to follow a course of consideration including whether the child spend “equal time between the parents” or “substantially and significant time” between the parents.  The High Court in MRR & GRR (“supra”) noted this at paragraph [15] of their Honours’ judgment as follows:

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, and not whether it is desirable that there be equal time spent by the child with each parent.  The presumption in S65DA(1) is not determinative of the questions arising under S65DAA(1).  Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.  Since such parenting would only be possible in this case if both parents remained in Mount Isa (the trial judge) was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable. 

   [5] (2010) 240 CLR 461

7. The father in the case now before me seeks an order for equal time with X.  The mother would have X spending only school holiday time with the father and does not, therefore, sit with the definition of either “equal time” or “substantial and significant time.”

8. An examination of relevant Full Court decisions[6] since the 2006 amendments to the Act demonstrate, in my view, that the historical principles remain valid.  They can be summarised as follows:

   a) Relocation matters are apparent in cases to be determined in accordance with part (VII) of the Act;

   b) The child’s best interests remain the paramount but not the sole consideration;

   c) A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child’s best interests (section 60CC matters) and, where appropriate, section 65DAA (reasonably practicable);

   d) The court must consider the parties’ proposals, including the advantages and disadvantages of the proposed relocation, and may be required to formulate proposals itself in the best interests of the child.

   e) Neither party bears an onus to establish that a relocation or a continuation of an existing regime will best promote the interests of the child;

   f)  An applicant for relocation need not show “compelling reasons” in support of the relocation, but must produce probative evidence which permits a court, on balance, to find that a parenting order involving a relocation be in the child’s best interests; and

   g) The child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, but that such an adult “right” must ultimately defer to the child’s best interests.

   [6] Taylor & Barker (supra), Sealey & Archer [2008] FAMCAFC 142, Starr & Duggan [2009] FAMCAFC 115, and McCall & Clark (2009) FLC 93-40.

9. As mentioned above, a trial judge must follow a statutory and intellectual course of consideration in determining a child’s best interests.  The starting point is the presumption at s.61DA of the Act of equal shared parental responsibility by parents of their children.  Parental responsibility is defined as all the duties, powers or responsibilities and authority which parents hold in respect of children by reason of law.  Such responsibilities usually manifest in long term and important decisions for children in respect of issues such as education, religion, medical procedure and the like.

10. The presumption of equal shared parental responsibility does not apply if the court is satisfied that there are relevant issues of family violence.  Such issues are not raised in the matter now before me.  Alternatively, the presumption can be rebutted by evidence satisfying the court that such an order would not be in a child’s best interests.  In this matter, both parents seek an order for equal shared parental responsibility.  Despite their admitted a profound ongoing conflict with each other, they have generally exercised  joint parental responsibility (albeit with some exceptions as to psychological intervention for X).

11. The framework for determining X’s best interests is provided in section 60B of the Act by way of the objects and principles of the legislation 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).

1. The court then is obligated to reference each of the statutory considerations set out in sections 60CC(2) and (3) of the Act, divided into “primary” and “additional” considerations and in respect as in the probative evidence and the proposals of the parties in order to arrive at a determination and orders that are in the child’s best interests.

2. There are two primary considerations as follows: 

   (2) The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Amendments to the Act in 2012 stipulate that I am to place greater weight on section 60CC(2)(b) being the family violence considerations than I am as to the other primary and numerous additional considerations, which involve a more pragmatic and empirical referencing of the particular evidence and factual platform before the court.

Section 60CC(2)(a) – The benefits to X of having a meaningful relationship with both of his parents

1. X is 10 years old.  He is fortunate in being able to have spent considerable time with each of his parents since their separation in 2006.  The parties agree and the evidence corroborates, that he has consequently established a comfortable, successful attachment with each parent.

2. The task for the court is to make orders which give the benefit of a continuing meaningful relationship for X with both parents.  The court approaches this in a prospective manner.  That is, the court must make orders which assist the child into the future whilst of course, taking into account the current state of the relationship between child and parent.  Secondly, the court deals with the quality of the relationship between child and parent rather than simply the quantity of time in days, hours and minutes.[7]

   [7] McCall & Clarke supra

3. The mother concedes the strong and bonded relationship between X and his father.  She says, therefore, that this relationship would be able to successfully endure a relocation from X away from his father and the significant change she proposes in the nature and frequency of that relationship.

4. Conversely, the father argues that the mother’s proposal so fundamentally changes the nature of his relationship with his son that the very relationship itself will be compromised and that the mother’s proposal does not provide or assist in a meaningful relationship for X and the father being maintained.  The father himself agrees, however, that he does enjoy a strong and bonded relationship with X.

5. The force of the father’s argument is recognised and commented on by Dr M in her family report at paragraphs 79 and 80 as follows:

   If we now focus on the developmental perspective, I would say that at 10 years of age, X is emotionally and developmentally capable of remembering his father, and of holding a picture of him in his head; which will in turn help him to maintain a positive relationship with the father, even if he indeed residing (sic) in a different state; if it eventuates that the court allows this.

   Similarly, on the positive side, X is at an age whereby he has had many positive experiences and interactions with his father already, and he clearly has a strong bond with him, and so this is only likely to help him manage a long-distance relationship with the father if this is what this is ordered.  However, it needs to be understood that it is also likely that his relationship with the father, and also with his siblings will diminish somewhat over time, as he spends more and more time with his mother and becomes more bonded with her, and less and less time with his father and his siblings, and so less bonded with them.

6. It is important to understand, however, that whilst orders benefiting children in “meaningful relationships” with parents is a “primary” consideration, it is just one amongst many which the court must reference, attribute weight and balance in ultimately making a determination that is in X’s best interests and one that is reasonably practicable.  The Full Court in Champness & Hanson[8] made this observation as follows:

   The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the Orders most likely to ensure the children had a “meaningful relationship” with both parents.  This is an incorrect assumption.  The Court’s obligation is to make orders most likely to promote the child’s best interests.  In seeking to achieve that objective, S60CC(2)(a) directs the court to consider “the benefit to the child” of having a meaningful relationship with both parents.  Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.[9]

Section 60CC(2)(b) – The need to protect X from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

[8] [2009] FamCAFC 96 at 103

[9] Ibid

1. Matters of family violence and child abuse fortunately do not feature in this matter.

ADDITIONAL CONSIDERATIONS

Section 60CC(3)(a) – any views expressed by X and any factors (such as his maturity or level of understanding) that the court thinks are relevant to the weight it should give to X’s views.

1. Any views or preferences expressed by X in relation to his parenting arrangements must be seen against the parents’ consensus and the observations of Dr M of X being a sensitive young boy and one lacking in self-esteem and confidence.  Further, X’s views are to be considered within the predicament these parents have apparently placed this young boy.  Each parent in their sworn evidence accuses the other of involving X in the dispute as to his potential relocation and leaving this 10 year old under no misapprehension as to the negative ramifications for him of choosing one parent’s proposal over the other.  This appears to be a more general course of conduct and lack of insight by both parents as X reports to Dr M at paragraph 46: 

   When asked about his parents, X stated that he feels a bit stuck in the middle, and he reported that his parents sometimes sends messages to each other through him, and he finds this tricky;  ...

2. The family report shows X’s view as to his proposed relocation are equivocal at best and often .....  Paragraph 50 of the family report is demonstrative: 

   X reported that he is confused about going to Queensland, because on the one hand, he would be excited to go because he would get to start fresh at a new school;  but on the hand, he is also worried that he won’t get to see his new sister and brother much, stating “I’m kind of confused if to go or stay...my dad wants me to stay...and my mum wants me to go.”

3. Dr M concludes in respect of X’s views at paragraph 70 of her report: 

   Whilst X is obviously confused about what he wants in terms of relocation, at the same time, he is not expressing strong opposition to the possibility, and on some level he seems somewhat open to it;  and he seems particularly open to starting a new school, and he would likely enjoy having his mother more available and being to engage in various after school activities, and it seems he likes his mother’s partner Mr L;  although he has of course made it clear that he would miss his siblings and his father and his partner – and his partner Ms N.

4. I am satisfied that X’s views as to relocation.  They are equivocal.  I am satisfied that they are influenced variously by his divided loyalties to his parents and by them improperly attempting to enlist his support for their own preferred results. 

Section 60CC(3)(b) – the nature of the relationship of X with each of his parents and with other persons including grandparents or other relatives. 

1. Ms F observes that X has an attached and loving relationship with both his mother and his father but looks to his mother for comfort and hence is his primary attachment figure.

2. X also confirmed to Dr M what was the evidence of each of the parties being that he has a good and comfortable relationship with both Ms N and Mr L.  I note though that X’s relationship with Mr L must have formed with relatively little direct contact.  I also note the comments or concerns of the father that should X be relocated to Queensland, then he will be establishing and developing his relationship with Mr L within the context of the latter’s presence in the household for only nine days out of each 37 and during a time when Mr L’s own children will be visiting.

3. The father’s unchallenged evidence is that X also has a loving relationship with the two young children in his household.  By reason of their young age, these relationships for X must not yet be fully developed and indeed it is a part of Mr Sloane’s argument that X and these siblings be permitted the frequency of time together so as to develop these important relationships. 

4. The effect on peer group relationships is always an important consideration in any matter involving a potential relocation.  The parties agree that X has been subject to some bullying at his current school although this may have diminished.  Suggestions were made at the interviews of the family report that X might in any event, be changing schools even if remaining in Melbourne.  Together with his own equivocal comments to Dr M on the proposed relocation, I assume that X has no strong or fully developed peer group relationships that might argue strongly against the mother’s proposal for relocation. 

5. The father emphasises the effect of the mother’s proposal on the nature of his relationship with X.  That is currently a regular relationship with small gaps in direct contact.  The mother’s proposal is for school holiday time.  It seems that factors of distance and travel time are prohibitive of weekend travel between (omitted), Queensland and Victoria.  Such a possibility was not canvassed during the trial.  It follows that a relocation for X will surely change the nature of the relationship between he and his father.  There are advantages of direct contact which cannot be substituted by Skype and other media.  There are advantages of proximity that will be lost.  The mother responds, however, that the very strength of X’s relationship with his father will cause that relationship to be maintained in its quality if not its nature. 

Section 60CC(3)(c) – the extent to each of X’s parents has taken, or failed to take, the opportunity:  (i) to participate and making decisions about long-term issues in relation to the child;  (ii) to spend with the child;  and (iii) to communicate with the child and (3)(ca)  – the extent to which each of X’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain him.

1. X has been adequately and properly financially supported by his parents.  They have each provided for his physical needs.  They are each, however, compromised and culpable in their lack of insight in important decisions for their son.  The family report makes it clear that X is very much aware of his parents’ personal conflict generally and issues concerning him.  Quite simply, they have been both unable and unwilling to cooperate and communicate in respect of important decisions for their son and most importantly in respect of his psychological and emotional welfare. 

2. They have considered “points scoring” against each other as a priority over X’s best interests.  It is almost unfathomable that these otherwise apparently intelligent and loving parents should act this way.  The father effectively unilaterally took X to a psychologist.  His efforts to advise the mother were token at best.  The mother however, had the opportunity to make a simple inquiry of the father as to the details of X’s treatment.  She did not take up this opportunity.  The rationale that each provided in court was that they were “in conflict”.

3. A cursory reading of the report of Dr M’s interview with X is both sad and enlightening as to the relative insight and maturity of this 10‑year old boy as against his parents.  Sadly, the graphic picture painted by Dr M and her comments which follow appear to have fallen on deaf ears given my observations of each of the parents in the witness box.

4. It is not an exaggeration to observe and speculate that a strong, if not primary motivation for this litigation proceeding to trial for both of these parents continues to be one of “points scoring” over the other.  I am immediately dismissive of the token efforts to lip‑service made by each of them during cross-examination and I certainly did not observe or glean any “Road to Damascus” enlightenment in either of them. 

Section 60CC(3)(d) – The likely effect of any changes in X’s circumstances, the likely effect on X of any separation from either of his parents, any other child, or any person (including grandparent or other relative of X), with whom he has been living.

1. This consideration is at the forefront of the father’s argument.  He says that the change in the nature of his relationship with X on the mother’s proposals should be given substantial weight.  Mr Sloane argues that X’s relationships with extended family members will be made difficult to establish and maintain on the mother’s proposal for relocation. 

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

1. The mother concedes that a relocation with X to (omitted) will effectively limit his time with Mr Sloane to school holidays.  Weekend time has not been seriously canvassed by either party during the trial and apparently on the basis of travel time between X’s proposed home on the (omitted) and his father’s home in Melbourne. 

Section 60CC(3)(f) – the capacity of each of the parents to provide for X’s needs, including physical, emotional and intellectual needs.

1. The father argues that the mother does not properly or keenly attend to X’s emotional needs.  He says that these needs are immediate and important and he alludes to X experiencing suicidal ideation.  On the facts before me, however, I am not satisfied that X has actually degenerated to such an emotional state of suicidal thoughts.  His school apparently agree with my view.  X has made comments, however, which indicate his frustrations with many aspects of his life, including at school and in his relationships with his parents.

2. These parents are keen in the extreme to find criticism with the other in their care of X.  I find much of such criticism to be unfounded.  The father, for instance says that the mother will not attend to X’s psychological needs if the relocation is permitted.  My observations of her in the witness box and in consideration of all of the material before me suggests otherwise.

3. Both impressed me as keen and understanding parents but are overwhelmed in this role by their palpable dislike of each other.  Indeed, the fact of the father proposing an equal‑time care arrangement for X and the mother proposing that X spends block periods of time with the father in Melbourne amounts to in my mind, a concession by each of them as to the capacity of the other. 

Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristic of the child that the court thinks are relevant.

1. The relevance here is the sensitivity and rigour of personality of X so as to adapt to the changes proposed by the mother and to deal generally with his relationships with and between his parents.  Alternatively, and it’s argued by the mother, the very sensitivity of X, his lack of self esteem/confidence and his personal difficulties at school together with the admitted interpersonal difficulties between the parents themselves might actually support the mother’s proposal which alleviates the frequent traumatic transitions for X between parents and serves to keep the parents themselves apart.

2. The irony is, of course, that it is the mother who mounts this argument whilst at the same time blandly conceding her own culpability in respect of exposing X to the conflict between she and his father.  One might observe that the obligation on any litigant to mitigate their own damages is rarely so pertinent as in this argument or arguably it is disingenuous to candidly share in the creation of the problem only then to seek to take advantage of that very problem.  Nevertheless, despite the dubious motivations of the mother, the fact remains that X is observed as a sensitive child quite obviously caught up in and affected by the caustic relationship between his parents.

Section 60CC(3)(h) – If the child is an Aboriginal or Torres Straight Islander.

1. Not relevant.

Section 60CC(3)(i) – The attitude to the child, and the responsibilities of parenthood demonstrated by each of the child’s parents.

1. Much of this consideration overlaps with the above.  It is worthy of repetition, however, that parenting of dependent children is not so much a “right” as it is a “responsibility or obligation”.  A not insignificant part of that responsibility is to shield children from the difficulties of their parents’ relationship breakdown and to guide them through these difficult times.  These responsibilities cannot be properly discharged from the parents themselves degenerating to often petty squabbles for purely selfish reasons but which can often have much more dramatic effects on their children.  The attitudes of both parents in this matter consequently bear scrutiny. 

Section 60CC(3)(j) and (k) – Any family violence involving the child or any member of the child’s family and any family violence orders that are applicable.

1. These matters are not directly relevant to the issues before me.

Section 60CC(3)(l) – the order that would be least likely to lead to the institution of further proceedings in relation to X

1. The very nature of family law litigation is that Courts are called upon to make prospective orders with the unknowns and vagaries involved. Parenting matters involving a proposed relocation only accentuate argument and emphasis on these unknowns. The father’s case in the matter before me is the unknown of the durability and longevity of the mother’s relationship with Mr L. If it falls over then there is a real possibility of further litigation. He raises the unknown of whether X can maintain a relationship with him and a meaningful relationship on the mother’s proposal. If his fears come to fruition there is the possibility of more litigation. X’s views are currently equivocal as to his living arrangements but may solidify in the future and perhaps lead to further litigation. Conversely, if the mother is not permitted to relocate with X then her feelings of being ‘trapped’ may develop a more emotional or psychological context and impact on her parenting thereby giving the possibility of further litigation. Despite her pessimism, the mother’s relationship with Mr L might survive him being in Queensland and she being in Melbourne but the development of that relationship and its consequences might also lead to further litigation in respect of X.

2. Nevertheless, it is the task of Courts to make orders where the paramount consideration is the best interests of children determined within a recipe of the proposals, evidence and the particular factual platform. It is not for the Court to strive for optimum or ideal orders. By definition and in the circumstances such an aim is unachievable. It follows therefore that it is incumbent upon parents to accept that a trial judge has reached conclusions that are in their child’s best interests and for them to accept and move forward in their parenting duly armed with such orders. The matter now before me is very much a case in point. Whilst I accept that my determination will leave one or other of the parties unhappy with the result, they now have the benefit of objective evidence in the form of the Family Report and these reasons which should assist them in avoiding further litigation in respect of their son and to improve their own communication and cooperative parenting.

Family Report

1. I gleaned much assistance in this difficult matter from Dr M’s evidence in court and from her report.  She is equivocal and non-committal in any recommendation in respect of the issue of relocation.  She does, however, provide much assistance in her observations of the parenting skills of the parents; in their lack of insight as parents;  and as to X’s personality and his particular needs.  Significantly, in respect of the father’s application, Dr M is hesitant in relation to a regime of equal time for X between his parents.  At paragraph 82 of her report she says:

   If we now turn to the issue of equal shared care in the event that the Court rules that X should remain in Victoria, I would say that X has expressed that this is what he wants, and it seems mostly because of his siblings, and generally speaking I suspect he would manage such a week about share care arrangement if this were ordered;  but in saying this, I have reservations about making such a recommendation for various reasons, and specifically because the mother presents as being more in-tune with what seems to be really going on for X, based on what the school is reporting and she seems to understand his personality and she seems more willing and able to take advice from professionals, and she seems willing and able to facilitate the father/son relationship, and her intentions remain in Victoria if X cannot go to Queensland in my view shows that she can prioritise her child.

2. By contrast in paragraph 83 of the report, Dr M says in respect of the father:

   ...the father’s apparent tendency to ignore or minimise the mother and the school’s actions in helping X in various ways, or his failure to see this, simply leaves the writer with real concerns about his ability to assist X in the future with these needs, in a way that benefits X;  and about his ability to take professional advice, and/or see beyond his own views and opinions to try to understand a different, and possibly more appropriate perspective.

3. At paragraph 88 of the report, Dr M gives an opinion in respect of the possible relocation but within the context of X’s attachments and the capacity of his parents and it is important that Dr M’s comments are viewed within the total context rather than simply extracting or emphasising a sentence or a phrase.  She says:

   The reality is that despite my various concerns with both parents, if we were just looking at X’s best interests, then ideally it would be better for him if his parents lived near each other, and he was able to have a substantial relationship with both of them;  because despite some of their apparent faults, X appears to enjoy the company of both, and on many levels, the parents appear to be good with him;  and certainly X would also benefit from having strong sibling relationships.

   However, if the court were to allow the mother to relocate to Queensland with X, then it will be important that he has plenty of time with his father and siblings during holiday periods, and any other time that is feasible, such as long weekends, etc.

   In contrast, if the Court were to rule that X needed to remain in Victoria, then I would be recommending that he remains residing primarily with his mother, and the current contact arrangement with the father remains the same.

Findings and conclusions

1. Whilst it is true that X has spent regular and shared time with each of his parents, I am satisfied that in accordance with Dr M’s observations and conclusions, X’s primary attachment is with his mother.

2. I accept Dr M’s observations that X is equivocal in his preferences as to relocating with his mother or remaining in Melbourne.  I place little or no weight on X’s views and including his statement in respect of an equal time arrangement, given that I am satisfied that this child has been subjected to manipulation and is certainly aware of each his parents’ own preferences which, together with the particular personality of this young boy, has created divided loyalties among other emotional difficulties for him.

3. I am satisfied that there is an attached, established and beneficial relationship between X and his father.

4. I am satisfied on the evidence and accept the opinion of Dr M at paragraph 81 of her report that:

   X would quickly and easily settle in Queensland if allowed to go, and especially if the mother takes steps to ensure he fits in at a school...

5. I am satisfied that the proposal of the mother would, however, present challenges to X in his relationship with his father and siblings in that the nature of the relationship would change dramatically in its frequency.

6. I am satisfied that the mother has the capacity and intent to attend to X’s special needs whether or not she be the primary parent living in Queensland or whether X lives in a relationship of “substantial and significant time” between his parents in Melbourne.

7. I am satisfied that both parents have been culpable in the past in prioritising their own petty personal disputes over proper cooperation and communication in respect of X’s needs.  I am otherwise satisfied that each has the capacity to attend to X’s physical and intellectual needs.

8. The mother has given evidence and was cross-examined as to the nature of her relationship with Mr L.  Mr L gave evidence by telephone and was cross-examined.  I am satisfied that the relationship is a committed one and that, whilst it may present particular difficulties, the evidence suggests that both the mother and Mr L have empathy with and are able to address X’s particular needs.

9. I am satisfied that the relationship for X with Ms N is one that benefits X.  The father seeks an equal-time arrangement for X if the parents are both living in Melbourne.  Such an arrangement took place for a period when X was younger.  The mother has since been the primary carer by reason of the addition of days and nights but with X spending substantial time in the care of the father.  Experience suggests that children might benefit from an equal-time arrangement if parents are able to cooperatively and respectfully parent the child.  On the evidence before me, these parents have been abject failures in this regard.  Their personal conflict has dominated their parenting responsibilities.  That conflict was palpable during the trial when “points-scoring” still seemed to be a priority.  They have been aware that their child has required the specialist psychological/counselling assistance yet have each been unable to put their own differences aside to attend to this need.  Again, the comments by X to the family reporter should have given an immediate wake-up call for both parents.  Incredibly, I did not see any evidence of this when each was cross-examined.  Consequently, I am satisfied that these parents do not display the traits to successfully equally parent their son and as such, I am satisfied that the mother should remain the primary carer parent for X.

10. There are both advantages and disadvantages in each of the proposals.  An advantage of the mother’s proposal is that she as the primary carer of X will enjoy freedom of movement and be able to pursue her relationship with Mr L.  As the primary carer, her happiness and comfort in this role has vicarious benefit for X.  A positive of the mother’s proposal is that X is of an age where he has an established, attached and successful relationship with his father and one which, on the evidence before me including that of Dr M, would be able to endure the changes in his life and in the nature of his relationship with his father anticipated by the mother’s proposal. 

11. Whilst I am critical of these parents in exposing X to their own conflict, that conflict appears so entrenched and has had such an effect on X that there is merit in the argument that putting distance between the parents and removing the frequency of their direct contact will have positive benefits for X.  Despite the father’s arguments and alleged concerns, I am satisfied that the mother has the requisite skills and that facilities would generally be available to attend to X’s counselling and other needs.

12. There are also benefits for X in the father’s proposal.  Specifically, X would be able to continue the frequent relationship of shared care which he currently enjoys with each of his parents.  That frequency would also assist his relationship with the two young children in the father’s household.  Undoubtedly, the mother’s proposal would significantly change the nature of the relationship currently enjoyed between X and his father in that he would be more of a “visitor” in his father’s household during school holidays rather than the regular presence he currently enjoys. 

13. A further potential advantage for X would be that ideally his parents living in close proximity would allow them to be jointly involved in his education, extracurricular activities and in particular, with his counselling and similar matters.  Nevertheless, the concern for the court remains that these two parents have had ample opportunity to cooperatively parent and have essentially been unable to do so.

14. The determination of X’s best interests is finely balanced.  Each of the party’s proposals will provide both benefit and detriment for X.  On consideration, however, I am satisfied that X’s best interests are served by living primarily with his mother.  For the reasons set out above, I am also satisfied on the balance of probabilities that his best interests are served by the mother being able to relocate with X to Queensland.  In this sense, I find X’s best interests are compatible with the mother’s right for freedom of movement.  I am satisfied that the mother’s reasons for wishing to move to Queensland are reasonable and that she is not motivated in any way by malice towards the father.

15. Whilst the nature of X’s relationship with his father will change and take a different form, I am satisfied on the evidence that it is an established and strong relationship which will endure.  X is of an age where he would be able to utilise the various media available to him which, whilst not a substitute for direct contact, will assist in the maintenance of his relationship with his father and siblings.  X will be saved the distress and anxiety of frequent transits between his parents’ homes and as exposed in the family report. 

16. Rather, he will enjoy block periods of school holiday time with his father and I accept the mother’s proposal generally that X spend longer periods of his school holidays in Victoria with his father including the greater majority or terms 1 and 2 holidays together with 4 weeks out of the 6 weeks of summer holidays thereby giving X every opportunity to settle into his father’s household of these times and to maximise his relationships with the adults and other children in their home.  The father is in full time employment. The mother plans to work and/or to have the benefit of Mr L’s support.  I am satisfied that it is appropriate for these parents to share equally in the travel costs for X visiting his father.  Generally, I am satisfied in all of the circumstances that these proposed orders are in X’s best interests and reasonably practicable in their operation.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  4 April 2014