LINDON & LINDON

[2015] FCCA 207

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINDON & LINDON [2015] FCCA 207

Catchwords:
FAMILY LAW – Children – parenting orders – relocation – where mother seeks to relocate child’s residence – best interests of the child – parental responsibility – equal shared parental responsibility – where both parties seek an order for equal shared parental responsibility – consideration of the parties’ alternative proposals.

Legislation:

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

Cases cited:
AIF v AMS [1999] HCA 26; (1999) 199 CLR 160; 163 ALR 501
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
MRR v GR [2010] HCA 4; (2010) 240 CLR 461
U v U [2002] HCA 36; (2002) 211 CLR 238; 191 ALR 289

Applicant: MR LINDON

Respondent: MS LINDON

File Number: SYC 6462 of 2013

Judgment of: Judge Scarlett

Hearing dates: 22 & 24 October 2014

Date of Last Submission: 24 October 2014

Delivered at: Sydney

Delivered on: 28 January 2015

REPRESENTATION

Solicitor for the Applicant: Ms Morton

Solicitors for the Applicant: Morton Family Lawyers

Counsel for the Respondent: Ms Spain

Solicitors for the Respondent: McCormick Lawyers

ORDERS

1. All earlier parenting Orders are discharged.

2. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child of the marriage X born (omitted) 2002.

3. The Mother is to be responsible for making decisions about the day to day care, welfare and development of the child X when the child is in her care in accordance with these Orders.

4. The Father is to be responsible for making decisions about the day to day care, welfare and development of the child X when the child is in his care in accordance with these Orders.

5. The child X born (omitted) 2002 is to live with the Mother.

6. The Mother is permitted to relocate the residence of the child X to (omitted) in the State of New South Wales.

7. The Father is to spend time with the child X at all reasonable times as agreed between the parties but failing agreement:

   (a)Each alternate weekend during the school term from immediately after school on Friday or Thursday if the Friday is a public holiday until 7:00pm on Sunday PROVIDED THAT if the Monday immediately following the weekend is a public holiday then until 7:00pm on the Monday, commencing on Friday 6 February 2015 and fortnightly thereafter;

   (b)For one half of the Autumn, Winter and Spring school holidays as appropriate for the school the child X attends as agreed between the parties but failing agreement for the first half of the school holidays in 2015 and each odd-numbered year thereafter and the second half of the school holidays in 2016 and each even-numbered year thereafter;

   (c)For the purpose of the above Order the first half of the school holidays is deemed to commence at 10:00am on the Saturday immediately after the last day of the school term and is deemed to conclude at 5:00pm on the following Saturday and the second half of the school holidays is deemed to commence at 10:00am on the second Saturday after the last day of the school term and to conclude at 5:00pm on the Saturday immediately before the start of the next school term;

   (d)During the Christmas/January school holidays in each year as agreed between the parties but failing agreement from 10:00am on 2 January until 5:00pm on 23 January in each year commencing on 2 January 2016;

   (e)Where Mother’s Day falls on a weekend when the child would otherwise be spending time with the Father in accordance with these Orders then the Father will not spend time with the child on that weekend but on the following weekend instead from immediately after school on Friday until 7:00pm on Sunday;

   (f)Where Father’s Day falls on a weekend when the child would otherwise be in the care of the Mother in accordance with these Orders then the child will spend time with the Father on that weekend from immediately after school on Friday until 7:00pm on Sunday instead of the following weekend;

   (g)From 12 noon on Christmas Day until 6:00pm on Boxing Day in 2015 and all odd-numbered years thereafter and from 9:00am on Christmas Eve until 12 noon on Christmas Day in 2016 and all even-numbered years thereafter.

8. To avoid confusion the Father’s time with the child on alternate weekends during the school term as prescribed in Order (7)(a) above will recommence immediately after school on the second Friday after the commencement of each school term.

9. For the purpose of changeover during the school term in accordance with Orders (7)(a),(e) and (f) above, the Father will collect the child from her school at the commencement of the time and the Mother will collect the child from the Father’s residence at the conclusion of the time.

10. For the purpose of changeover during the school holidays in accordance with Order (7)(b) and (c) above the father will collect the child from the Mother’s residence at the commencement of the time and the mother will collect the child from the father’s residence at the conclusion of the time.

11. The Mother is to ensure that the child telephones the Father on his birthday in each year if the child is not otherwise spending time with him in accordance with these Orders.

12. The Father is to ensure that the child telephones the Mother on her birthday in each year if the child is spending time with him in accordance with these Orders.

13. Each parent is permitted to telephone the child on her birthday if the child is in the care of the other parent in accordance with these Orders and the parent who has the care of the child at the time must do all acts and things necessary to facilitate the telephone call.

14. The Father and Mother are to have reasonable telephone communication with the child at all times when she is in the care of the other parent in accordance with these Orders and that parent must do all acts and things necessary to facilitate the telephone communication with the child.

15. The Mother is permitted to enrol the child X at (omitted) College to commence school at the beginning of the first school term in 2015 and is to ensure that the school is informed of the Father’s address, telephone number and any other contact details.

16. The Mother is to provide a written authority to the child’s school to provide the Father at his request copies of all school reports, newsletters, information about school photographs and other material usually provided to parents of children attending the school.

17. Each parent is permitted to attend parent/teacher interviews, school sporting events, prize-giving ceremonies, special assemblies and other events normally attended by parents of children attending the school.

18. Each parent must inform the other as soon as reasonably practicable of any serious illness or injury sustained by the child requiring treatment at a hospital or by a specialist medical practitioner and authorise any medical practitioner, hospital or other health professional to provide information to the other parent about the health of the child.

19. Each parent is to advise the other parent of their current residential address, landline and mobile telephone number and email address and inform the other parent within forty-eight (48) hours of any change.

20. Neither party is to criticise or denigrate the other party or any member of the other party’s family in the presence or hearing of the child or permit any third person to do so.

21. In the event that the Father is unable to spend time with the child in accordance with these Orders due to work commitments, illness, injury or other unforeseen circumstances he must do all things necessary to give the Mother reasonable notice of his inability to spend time with the child.       

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6462 of 2013

MR LINDON

Applicant

And

MS LINDON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father of a twelve year old girl called X for orders that would result in her living with each of her parents on an equal shared care arrangement if the Mother remains living in the (omitted) Shire area of Sydney but, if the Mother were to choose to relocate to (omitted), in the (omitted) area, then the Father seeks orders that the child would live primarily with him and spend time with her mother.

2. The Mother opposes this Application. She seeks orders that she be permitted to relocate the child’s residence to (omitted) and that the child would spend time with the Father.

Background

1. The Father was born on (omitted) 1969. He is now 45 years old. The Mother was born on (omitted) 1970, so she is now aged 44.

2. The parties were married on (omitted) 2000. They separated in May 2008 and were divorced on 20^th December 2010.

3. There is one child of the marriage, X, who was born on (omitted) 2002. She has been living with her mother and spending regular time with her father.

4. In early 2010 the Mother purchased a house in (omitted), an outer suburb of (omitted).

5. The Father formed a relationship with Ms N and commenced living with him in July 2010.

6. The Mother formed a relationship with a Mr K and commenced living with him in September 2010. On (omitted) 2011 the Mother gave birth to a son, named Y.

7. Later that year she raised the issue of relocation with the Father for the first time. She did not take any steps to pursue that issue until about February 2013, when she again raised the issue with the Father.

8. The Mother advised the Father in September 2013 that she wished to relocate with the child X to the (omitted). She commenced working one day a week in (omitted) in a (omitted) business owned by her aunt.

9. The Father commenced proceedings on 4^th November 2013 by filing an Application for parenting orders relating to X. The Application was returnable on 3^rd February 2014.

10. The Mother filed a Response on 1^st February 2014 in which she sought orders that the child should live with her and spend time with the Father. The mother proposed different arrangements for the period in which she continued to reside within 75 kilometres of the Father and for the period when she commenced her plan to reside in the greater (omitted) area.

11. On the first return date of the Father’s Application, 3^rd February 2014, the parties were directed to attend a Child Inclusive Conference with a Family Consultant.

12. The Conference took place on 17^th February 2014. In the Child Inclusive Conference Memorandum to Court the Family Consultant noted that the parents had had an amicable parenting relationship until the Mother’s proposed relocation became a significant issue between them about a year earlier. The child described her parents as “a good Mum” and “a good Dad” and told the Family Consultant that she did not really mind where she was as long as she was with her family. Further, the child told the Family Consultant that she found the current arrangement “good”. She did not mind the arrangement staying the same but did not really want the time with her father to increase:

    The reason that she gave for this was the presence of her brother Y in her mother’s home. She loves Y and he gives her someone to play with when her mother is busy, whereas, when she is at her father’s home and her father happens to be busy, she has no other child to play with.[1]

    [1] Child Inclusive Conference Memorandum  to Court 20.2.2014 page 2

13. The Mother told the Family Consultant that she wished to relocate to (omitted) because she had a house there and it would be cheaper for her to live there.

14. The Father told the Family Consultant that he objected to the relocation because it would change the way in which he could be involved in X’s life, including reducing the amount of time the child could spend with him and making it difficult or impossible for him to be involved in the child’s after school and other extra-curricular activities. He also said that the Mother’s proposal would remove the child from the area in which she has lived for her whole life and where he paternal family live.

15. On 16^th April 2014 the parties entered into Interim Consent Orders providing that the child would live with her mother and spend time with her father each alternate weekend from after school on Thursday until 5:00pm on Sunday, as well each alternate Tuesday evening from after school until 8:00pm and half of each school holiday period.       

Evidence

1. The Father relied on the following affidavits:

   a)His affidavit sworn 3^rd October 2014;

   b)The affidavit of his de facto partner Ms N sworn 3^rd October 2014; and

   c)The affidavit of his mother Ms J sworn 9^th April 2014.

2. The Father and his mother Ms J both gave oral evidence. Ms N was not required for cross examination.

3. The Father’s evidence was that the Mother returned to work six weeks after the child was born, but, as he had recently sold the business he had been operating, he remained home and became the child’s primary carer during the day. He did not return to work for approximately twelve months.[2]

   [2] Affidavit of Mr Lindon 3.10.2014

4. The Father acknowledged that even though the Mother was working she also was highly involved in the child’s care. It was his evidence that until the parties separated in 2008, when X was aged six, both parents played a prominent role in the child’s upbringing and shared in her day to day care.[3] 

   [3] Ibid at [20]-[21]

5. The child also spent every Thursday with her paternal grandmother from the time she was approximately two years old until she commenced school in 2008.[4] This evidence was confirmed by the paternal grandmother in her affidavit.[5]

   [4] Ibid at [22]

   [5] Affidavit of Ms J 9.4.2014 at [10]

6. It was the Father’s evidence that after the parties separated in May 2008 until late in 2010 the parties had a flexible and amicable parenting relationship in respect of X. However, the Father deposed that he was shocked when the Mother told him late that year that she wanted to move to her house in (omitted) when X finished primary school. There were subsequent discussions and the relationship between the parties became less amicable.

7. The Father deposed that he and the child have “a wonderful father and daughter relationship”.[6] Further, his parents, X’s paternal grandparents, have been a major influence in the child’s life.

   [6] Affidavit of Mr Lindon 3.10.2014 at [63]

8. The Father is in a relationship with Ms N. He states that Ms N has “a very nice relationship” with the child.[7]

   [7] Ibid at [71]

9. The Father complained that the relationship between the Mother and himself has been more rigid and less amicable since the Interim Consent Orders were made on 16^th April 2014.

10. The Father deposed that he opposed the proposed relocation to (omitted) because:

    a)It would take the child away from the area where she had lived all her life;

    b)It would have a negative effect not only on his relationship with the child but also on the child’s relationship with her paternal grandparents, aunt, uncle and cousins;

    c)He estimated that it would take him two hours and twenty-six minutes to drive the 186 kilometres between his home and the Mother’s proposed residence in (omitted);

    d)Because of the distance involved, he would no longer be able to attend the child’s Monday and Friday afternoon sport, her school assemblies and her weekend sport;

    e)The child would no longer have time with him on a Thursday; and

    f)Her expressed doubt about the Mother’s proposal to drive the child to a place every second Tuesday where he could meet the child and have dinner with her.

11. The Father also expressed concern about the location of the Mother’s home at (omitted), because:

    a)(omitted) has a high crime rate;

    b)(omitted) is near (omitted), noting that a (omitted) newspaper identified (omitted) as “an area locally known for its bikie clubs, violence and street walking prostitutes who often use (omitted) as their place of business”[8]; and

    c)The (omitted) region has the greatest number of long school suspensions in the State, with many students being given long expulsions for persistent misbehaviour including physical violence.

    [8] Affidavit of Mr Lindon 3.10.2014 at [91]

12. Ms N deposed in her affidavit that she is a (occupation omitted) of (omitted) and has been working in the (omitted) system for her entire career. She has developed a close relationship with X and they are involved on a regular basis together in such activities as cooking, sewing and art. She encourages the child in her educational and sporting activities. Until recently, she had enjoyed a good relationship with the child’s mother.

13. Ms N was not required for cross-examination.

14. The paternal grandmother, Ms J, deposed that she and her husband have had a lengthy involvement with the child since she little. She confirmed the Father’s evidence that he has a very close relationship with the child.

15. Ms J expressed the opinion that the proposed move to (omitted) would not be in the child’s best interests, because it would not be possible for her and her husband to see the child with the same level of frequency that they currently do.

16. The Mother sought to rely on the following affidavits:

    a)her affidavit of 3^rd October 2014;

    b)the affidavit of her partner Mr K of 28^th September 2014;

    c)the affidavit of Mr E of 29^th September 2014; and

    d)the affidavit of Ms M of 13^th April 2014.

17. The Mother denied in her affidavit of 3^rd October 2014 that the Father had been as involved in the care of the child as he claimed in his evidence. She deposed that, when the Father was working from home, he wanted the house to be kept looking immaculate at all times, which was very stressful for her when they had a small child in the house. She claimed that the Father only involved himself with herself and X was when they were catching up with friends. Otherwise, he would never accompany her and the child anywhere.[9]

    [9] Affidavit of Ms Lindon 3.10.204 at [65]

18. The Mother also deposed that she always encouraged the relationship between X and her father once they were separated, even though the child would cry when the Father wanted her to stay overnight at his home.

19. It is the Mother’s evidence that in 2010 she commenced a relationship with Mr K and began living with him in September 2010.

20. The Mother stated that in 2010, when she had money from her property settlement with the Father, she wanted to buy a house rather than continuing to live in rental accommodation. She could not afford to purchase a home in the (omitted) Shire as house prices even for modest houses were $600,000.00 or more. Eventually, she found a four bedroom house in (omitted), which she purchased for $365,000.00.

21. The Mother became pregnant to her partner and gave birth to their son Y on (omitted) 2011. She deposed that X has “doted” on Y since he was born and he loves her and follows her everywhere.

22. It is also the Mother’s evidence that X has a very good relationship with her partner Mr K.

23. The Mother stated that she wished to relocate to the (omitted) area because:

    a)The house at (omitted) has sufficient room for her, Mr K and the two children;

    b)Her aunt had a (omitted) business in (omitted) and had offered her and Mr K employment;

    c)They are currently living in a small three bedroom duplex for which they pay rent of $475.00 per week;

    d)She and Mr K would be able to live more economically in the house at (omitted).

24. The Mother stated that she and the Father visited (omitted) College in (omitted) on 14^th July 2014. She and the Father formed a favourable impression of the school and X said that she loved it. The following day they received a letter from (omitted) College offering the child at a place at the commencement of the 2015 school year.

1. The Mother deposed that Mr K was currently living at the (omitted) Caravan Park whilst he works in the (omitted) business. She and the two children drive up on Friday afternoons and return to Sydney on the Saturday. Mr K travels to Sydney on Saturday afternoons and returns to the caravan park on Monday afternoon.

2. The Mother estimated that if she were able to live in the house at (omitted) her family “would be approximately $1,216.96 better off” (per week).[10]

   [10] Affidavit of Ms Lindon 3.10.2014 at [136]

3. The Mother proposed that if she were able to relocate the child’s residence to (omitted) she would arrange to drive the child down to meet the Father so that he and X could have dinner together:

   If X is granted permission to move to (omitted), I propose that Mr Lindon and I drive halfway each alternate Tuesday so they can have dinner together and that she continues to spend each alternate weekend with (him). According to whereis.com the (omitted) property is approximately 170 km away from where I live now and with a drive time of approximately 2 hours and 20 mins.[11]

   [11] Bid at [142]

4. Mr K deposed in his affidavit of 28^th September 2014 that he had three children from a previous relationship, aged 21, 13 and 11 years. They live in country New South Wales and he drives to see them every school holiday. He either stays near to where they live or he brings them back to the home where he lives with the Mother.

5. Mr K confirmed that in or about July 2014 he was offered a contract to (occupation omitted) the (employer omitted) on six evenings per week. As a result of his accepting that employment he earns a gross income of approximately $1,836.00 per week “and we are better off then we have ever been”[12] . He stated that he had looked for work in Sydney but all that was on offer were hard physical jobs which he would have been unable to maintain because of a recurring back injury which was caused by heavy lifting.

   [12] Affidavit of Mr K 28.9.2014 at [13]

6. Mr E deposed that he is the husband of the Mother’s aunt, Ms C. He and his wife live in the (omitted) area and have been contract (employment omitted) for approximately 15 years. For some time he had offered the Mother (omitted) work because she had previously worked for him and he had a favourable opinion of the thoroughness of her work and her commitment. He has offered the Mother a (employment omitted) contract and she works one day a week whilst she lives in Sydney and commutes from Sydney.

7. Mr E deposed that he had offered the Mother the (employment omitted) contract for the (employer omitted), which she was unable to accept but suggested that Mr K could do the work. He deposed that “Mr K is doing a fantastic job at the (employer omitted)”.[13]

   [13] Affidavit of Mr E 29.9.2014 at [9]

8. Mr E went on to depose that he had “more than enough work to provide Ms Lindon and her partner Mr K with full time (omitted) and/or (omitted) contract work in the (omitted) area”.[14]

   [14] Ibid at [10]

9. Ms M deposed in her affidavit of 13^th April 2014 that she is the mother of the Respondent mother (and therefore the maternal grandmother of the child X). She and her partner have a longstanding loving and caring relationship with X. She has only recently retired from the workforce. She and her partner travel to the Mother’s home in the (omitted) Shire every Tuesday to look after the children X and Y whilst their parents are away at work.

10. Ms M deposed that if the Mother were to relocate to (omitted) she and her partner would look at purchasing a property nearby so that they could continue to support the Mother and Mr K by helping them care for the children.

The Family Report

1. The Family Report was prepared by Ms J, a Regulation 7 Family Consultant who is a psychologist by profession. The Report was completed on 6^th October 2014.

2. For the purpose of preparing the Family Report, Ms J interviewed the following:

   a)the Father;

   b)the Mother;

   c)the child X;

   d)Mr K; and

   e)Ms N.

3. The Family Consultant also observed X’s interaction with her father and Ms N together and with her mother, Mr K and the child Y.

4. Ms J described X as “a strikingly caring and articulate young girl” who appeared very anxious during the interview.[15] The child described her parents’ proposals in this way:

   …X said that she would like to move to (omitted) because she can have a better ‘lifestyle’ there and it will be cheaper for her ‘Mum’ which means they will be able to do other things that they cannot do now, such as go on holidays. X said that she would miss her friends and ‘the (omitted)’ because she has lived there her whole life but would only miss her family ‘a bit’ because she knows she would still be able to see them all the time. X said that although she is ‘shy’ she is not too worried about making new friends in (omitted)…

   X maintains that, if she were to remain in Sydney, she does not want to spend any more time at her father’s home and is happy with the current arrangements for time with him. She explained that her two homes are very different and that her ‘Dad’ was a bit ‘tougher’ on her than her mother, which seemed to refer to a stricter set of rules for things like homework, chores etc. X said that her father’s home is a lot quieter than her mother’s and that even though having a little brother could be annoying sometimes, she loves Y very much and would miss him if she had to spend time at her father’s.[16]

   [15] Family Report page 11 at [27]

   [16] Family Report pages 11 and 12 at [29]-[30]

5. Ms J cautioned that X’s views may indicate that she felt pressured by her parents’ views on relocation and “her current statements about wanting to live in (omitted) may be motivated by her wish to make her mother happy.”[17]

   [17] Ibid at [39]

6. However, the Family Consultant went on to state:

   X’s views on the amount of time spent with each parent, that she does not wish to spend more time living with her father, have remained consistent and seem to be more genuinely based on her own needs rather than meeting the needs of her parents. Should X remain living in Sydney, Mr Lindon’s proposal for increased time may not be in her best interests.[18]

   [18] Ibid at [40]

7. The Family Consultant recommended that:

   a)X should live with her mother;

   b)Should the Court permit X to relocate to (omitted)…X spend time with her father each alternate weekend and further times as agreed between the parents; and

   c)Should the Court order X to remain living in Sydney…current arrangements continue for X to spend time with her father.

Submissions

1. The mother’s solicitor, Ms Morton, submitted that the Mother’s evidence was full of inconsistencies and untruths and that her claim of a financial necessity to relocate to (omitted) did not add up. When the Father was made aware of the mother’s strained financial circumstances his responses were “How can I help?” and “do you need more money”. Ms Morton referred in her Case Outline to the following authorities:

   a)Goode & Goode;[19] and

   b)MRR v GR[20]

   [19] Although, confusingly, with an incorrect citation. The correct citation is [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [20] [2010] HCA4; (2010) 240 CLR 461

2. Ms Spain of Counsel, who appeared for the Mother, submitted that the Mother does have a compelling reason for wishing to relocate to the (omitted) area, a financial reason, although she does not need to demonstrate a compelling reason. The Mother is genuinely stressed about her financial situation, which is confirmed by the evidence of Mr K.

3. Ms Spain referred the Court to the decisions of:

   a)AMS & AIF[21]; and

   b)U v U[22].

   [21] [1999] HCA 26; (1999) 199 CLR 160; 163 ALR 501

   [22] [2002] HCA 36; (2002) 211 CLR 238; 191 ALR 289

Applications for Parenting Orders

1. Relocation applications are not a separate category of cases; they are parenting applications and the same principles apply as apply in any other application for parenting orders. The Court must look to the provisions of Part VII of the Family Law Act 1975 (Cth). In particular, the Court should have regard to:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child; and

   e)Section 65DAA, which requires the Court to consider equal time with each parent or, in the alternative, substantial and significant time with each parent, where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, so far as they are relevant.

Equal Shared Parental Responsibility

1. Both parents seek an order that they should have equal shared parental responsibility for X. There does not appear to be any reason why the presumption under s.61DA(1) of the Act should not apply.

Section 65DAA of the Family Law Act

1. Because an order is to be made that X’s parents are to have equal shared parental responsibility for her, the Court is now required by s.65DAA to consider the question of the child spending equal time with each parent or, failing that, substantial and significant time. It is a proposal of the Father that the Mother should be restrained from relocating the child’s residence to the (omitted) area. If that were to be the situation, and the Mother remained living in the (omitted) Shire, he seeks an order that the child would spend equal time with each parent. That is one of the proposals to be considered when the Court is considering what orders would be in the child’s best interests.

The Best Interests of the Child

1. As section 60CA of the Act stipulates, the best interests of the child must be the paramount consideration.

2. Section 60CC sets out how the Court determines what is in a child’s best interests.

3. The primary considerations are to be found in subsection 60CC(2), being:

   a)The benefit to the child of having a meaningful relationship with both of her parents; and

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

4. This is not a case where it is suggested that there is any risk of harm to the child in the care of either or her parents. There is no family violence order in force. Further, it appears that X has a positive and loving relationship with each of her parents and the benefit of maintaining her relationship with each parent is quite apparent.

5. The additional considerations are to be found in subsection 60CC(3) of the Act.

6. The first matter to be considered is the views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks relevant to the weight given to those views. In this case, the child has told the Family Consultant that:

   a)She would like to move to the (omitted) area; and

   b)She does not wish to spend more time with her father than she does now.

7. According to the Family Consultant, X presented as a caring and articulate child, albeit very anxious. She is 12 years of age and some weight should be given to her views. The Family Consultant has suggested that her expressed opinion in favour of moving to (omitted) should be viewed with some caution, but her statement that she does not consider that she needs to spend more time with her father than she does now seemed to be based more on her own needs rather than meeting the needs of her parents.

8. It appears clear that the child has a good relationship with both of her parents but also their respective partners and her grandmothers. She clearly has a strong affection for her little brother Y.

9. On balance, it appears that each of X’s parents has taken the opportunity to spend time and communicate with her. They each wish to participate in making decisions about major long-term issues in relation to her, and each parent acknowledges that the other parent does, as shown by their view that they should have equal shared parental responsibility for her.

10. The Father has been paying child support, but the Mother stated that he had reduced the amount. He claims that he has offered the Mother financial assistance.

11. One issue of relevance is that contained in paragraph 60CC(3)(d) of the Act, being the likely effect of any changes in the child’s circumstances, including the likely effect of any separation from either of her parents or any other child or other person with whom she has been living. Noting the child’s attachment to her little brother and her expressed views, it would appear that the child would not be happy about a change of residence to the home of her father on a full-time basis.

12. There will be some practical difficulty and expense involved if the child commences to reside in (omitted) on a full-time basis, due to the distance. This will affect the time that she spends with her father, although it is not likely, as far as can be seen, that her relationship with her father will deteriorate.

13. The distance between the (omitted) Shire and (omitted) does not indicate that the Mother’s proposal for the child to travel to Sydney on alternate Tuesday afternoons during the school term to have dinner with her father is a very practical idea. Travelling to Sydney, even to the (omitted) shopping complex in (omitted), a northern suburb of Sydney, would soon become a tiring and irksome chore for a child attending High School. It would be likely to take two hours each way by car, depending on traffic, and it would mean that the child would not get home until about 10:00pm if she spent until 8:00pm with her father.

Orders that are in the child’s best interests

1. Where a party proposes to relocate the residence of a child away from the area where the child has been living, the Court should consider the parties’ proposals and ascertain which proposal most needs the child’s best interests. It is not necessary for a party who wishes to relocate to show a pressing need.

2. The Father has two proposals:

   a)That the Mother should not relocate out of the (omitted) Shire and that the child should spend an equal amount of time with each parent; or

   b)In the alternative, if the Mother chooses to relocate to (omitted) then X would reside primarily with him and spend time with her mother.

3. The Mother’s proposal is that she should relocate to the (omitted) area and the child would remain living with her. The child would spend time with her father.

4. The Mother has demonstrated a valid reason why she wishes to live in her house in (omitted) for economic and work-related reasons. I am not persuaded that the Father’s views that (omitted) is a bad area for crime should sway the decision. Many people live in (omitted) now, as it is the second-largest city in New South Wales.

5. The Father’s proposal that the child should spend equal time with each parent does not appear to be in the child’s best interests. Whilst she loves her father and has a positive and warm relationship with her paternal grandmother and Ms N, she has made it clear that she does not want to increase the amount of time she spends living with her father.

6. Those considerations would also militate against the Father’s alternative proposal that, if the Mother wishes to live in the (omitted), the child should remain living in the (omitted) Shire and reside primarily with him. The child has a strong attachment to her young half-brother Y and she would miss him, as well as missing her mother.

7. The Mother’s proposal would definitely reduce the amount of time that the child would spend with her father, as she would not see him during the school week. The Mother’s suggested arrangement of the child travelling down with her every Tuesday afternoon and meeting the Father for dinner at (omitted) appears to be unworkable and I do not see it as being in the child’s best interests. However, it does not appear that the child’s relationship with her father is likely to deteriorate, as her relationship with him is a strong and loving one.

8. The only other alternative would be for the Father to relocate to the (omitted) area himself, which he is understandably reluctant to do. He has a relationship with Ms N who would be reluctant to move.

9. In my view, the child X should remain living with her mother, her half-brother and her mother’s partner. There are valid reasons why the Mother wishes to relocate to (omitted), which is not an overwhelming distance away from Sydney, and I consider that she should be permitted to do so.      

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  28 January 2015