Manion & Danner
[2024] FedCFamC2F 896
•15 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manion & Danner [2024] FedCFamC2F 896
File number(s): SYC 5313 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 15 July 2024 Catchwords: FAMILY LAW – PARENTING – relocation Sydney to the City B area – nearly 3 year old child – no risk issues – both parents have loving relationship with child and able to meet child’s needs – parents agree on shared care in event there is no relocation – mother’s family have moved to City B – mother has mental health issues – mother’s treating psychologist unavailable to give evidence – mother seeks family support – financial and accommodation benefits of moving to City B – opportunities to pursue tertiary education in City B – father’s ability to move – relocation not permitted Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC, 65D
United Nations Convention on the Rights of the Child Article 7.2
Cases cited: A & A: Relocation Approach [2000] FamCA 751; (2000) FLC 93-035; 26 Fam LR 382
Adamson & Adamson [2014] FamCAFC 232
AMS & AIF [1999] HCA 26
Grella & Jamieson [2017] FamCAFC 21
Heath & Hemming (No 2) [2011] FamCA 749
KB & TC [2005] FamCA 458; (2005) FLC 93-224;33 Fam LR 471
Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343; 312 FLR 114; (2008) Fam LR 275
Nussbaum & Nussbaum [2017] FCCA 1638
Oswald & Karrington [2016] FamCAFC 152; (2016) FLC 93-726; 55 Fam LR
Taylor v Barker [2007] FamCA 1246; (2007) FLC 93-345; 214 FLR 433; 37 Fam LR 461
U v U [2002] HCA 36
Division: Division 2 Family Law Number of paragraphs: 158 Date of last submission/s: 15 May 2024 Date of hearing: 13 – 15 May 2024 Place: Dandenong – via Microsoft Teams Counsel for the Applicant: Mr Tockar Solicitor for the Applicant: Messenger Family Law Counsel for the Respondent: Ms Judge Solicitor for the Respondent: Low Doherty & Stratford ORDERS
SYC 5313 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANION
Applicant
AND: MS DANNER
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
15 JULY 2024
THE COURT ORDERS THAT:
1.The Mother and the Father shall be jointly responsible for making decisions in relation to major long term issues affecting the child, namely X, born in 2021 (“the child”).
2.Each parent shall individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development and parental responsibility of the child on a day to day basis during periods when the child is living with or spending time with that respective parent.
3.The parties are restrained from removing the child’s residence from the Sydney Metropolitan area, unless agreed in writing with the other parent.
4.Until 1 January 2026 the child live with the Mother and spend time with the Father:
(a)In week 1, from 9:00am on Sunday until 7:00pm on Tuesday;
(b)In week 2, from 5:30pm or the conclusion of the Father’s work on Saturday (whichever is the earlier) until 7:00pm on Tuesday;
(c)In week 3, from 7:00am Monday until 7:00pm Tuesday;
(d)In week 4, from 5:30pm or the conclusion of the Father’s work on Saturday (whichever is the earlier) until 7:00pm on Tuesday;
(e)Such further or other times as agreed between the parents in writing.
5.From 1 January 2026 until 1 January 2027 the child live with the Mother and spend time with the Father as follows:
(a)In week 1, from 9:00am on Sunday until 7:00am on Wednesday;
(b)In week 2, from 5:30pm or the conclusion of the Father’s work on Saturday (whichever is the earlier) until 7:00pm on Tuesday;
(c)In week 3, from 7:00am Monday until 7:00am on Wednesday;
(d)In week 4, from 5:30pm or the conclusion of the Father’s work on Saturday (whichever is the earlier) until 7:00pm on Tuesday;
(e)Such further or other times as agreed between the parents in writing.
6.From when the child starts school in 2027 the child live on a shared care basis as follows:
(a)Three consecutive days with the Mother;
(b)Three consecutive days with the Father;
(c)Two consecutive days with the Mother; and
(d)Two consecutive days with the Father.
7.From 1 January in 2029, the child live on a week about basis with each parent during the school terms, with changeovers to occur at 6:00pm on a Sunday.
8.During school holidays the child spend time with each parent for one half of all of the child’s school holidays by agreement, but failing agreement, with the Father for the first half in even numbered years and the second half in odd numbered years and with the Mother for the first half in odd numbered years and the second half in even numbered years;
9.For the purpose of changeovers of the child, the Father or his nominee shall collect the child from the Mother’s residence at the commencement of the periods that the child is to live with him, and the Mother or her nominee shall collect the child from the Father’s residence at the commencement of the period the child is to live with her, unless otherwise agreed between the parents.
10.The Mother and Father shall keep each other informed at all times of their residential addresses, email addresses and contact telephone numbers and shall advise the other of any change within 7 (seven) days of such change.
11.Each parent will provide such consents and authorities as may be required:
(a)by any hospital, medical practitioner or health care professional including counsellors, psychologists and/or psychiatrists to receive information and reports in relation to the child’s health, welfare and treatment and to enable the other parent to give or receive such information;
(b)to any sport or other organisation providing sporting or extra curricular activities to the child, to enable that organisation to communicate with the other parent and to provide any information requested by the other parent in relation to the child whilst engaged in or enrolled in such activities.
12.Each parent shall as soon as practicable contact the other parent to advise in the event that the child:
(a)becomes seriously ill;
(b)is hospitalised; or
(c)is involved in an accident, in circumstances requiring the attention of a medical practitioner or admission into hospital.
13.Without limiting the parental responsibility of either parent pursuant to these Orders, each parent must keep the other informed of and properly consult with the other with respect to any significant parenting issues affecting the child. For the purposes of these Orders, a “parenting issue” is:
(a)any medical or health matter concerning the child;
(b)any medical or health matter affecting either parent which may affect the ability of that parent to care for the child;
(c)matters relating to the education of the child, including but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, options to purchase school photographs and all communication from the child’s school other than with respect to routine or administrative matters;
(d)matters concerning the social development and sporting activities of the child; and
(e)generally, any matter regarding the child in respect of which a parent should be informed of or consulted with having regard to the provisions of the Family Law Act 1975 (Cth).
14.The parents be permitted to communicate with the child via FaceTime and telephone liberally and at times agreed upon between the parents via text message, and both parents will facilitate the call to be made by that parent to the other parent’s mobile telephone.
15.The Mother and Father are permitted to travel overseas and interstate with the child for a period of up to 21 days duration each year, provided they provide the other parent with 30 days written notice (or such other notice period, as agreed between the parents) of their intention to do so. Any holidays taken pursuant to this order are to be taken, once the child has started primary school, within the child’s school holidays, unless otherwise agreed in writing between the parents. Such notice is to include dates of travel, itinerary, contact details for the child for the duration of the trip and return ticketing details.
16.Both parents are to keep the other parent informed of the names and contact details of any treating medical or other allied health professionals who treat the child.
17.Both parents are entitled to receive at their own request and expense any and all information in relation to the health, education and welfare of the child including but not limited to details of any illness suffered by the child and treatment required, school reports, newsletters, notifications of parent teacher interviews, photograph order forms and details of any disciplinary matters and that this Order constitutes an authority to each of the child’s medical practitioners, allied health professionals and schools to provide that information.
18.In the event the child is prescribed medication or a particular form of treatment which is required to continue into a period when the other parent will be caring for the child, any medication or materials required for treatment will be sent with the child along with a description of the condition for which it is required and the appropriate dosage or method of treatment.
19.Neither parent is precluded from attending any pre-school or school functions, school activities or extra-curricular activities involving the child in the event that such function or activity occurs at a time when the child are living with the other parent.
20.Neither parent shall make a commitment for the child during a period when the child will be with the other parent, without first discussing the commitment with the other parent and obtaining their consent to such commitment, save for the child’s usual sporting and extra-curricular and the necessary training sessions she may be enrolled in.
21.Neither parent shall enrol the child in an extra-curricular activity or school without first obtaining the other parent’s consent to the child being so enrolled.
22.The parents will consult each other prior to any decision being made that will impact on the child’s schooling, residence, or holiday travel.
23.All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This is a parenting matter where the mother is seeking to relocate from the Sydney metropolitan area to City B or more specifically Town D which is about 40 kilometres from City B and where the maternal grandparents now reside. For ease of reference, I shall refer to the relocation as to City B.
The parties currently live in Sydney. The father grew up in Sydney and the mother has spent most of her life there however in the last two or three years both of the mother’s parents have moved from Sydney to City B along with her grandmother and her sister. The parties are still relatively young at just 26 years old and until relatively recently, each lived with their parents.
The parties have one child, X, who will be three years of age in 2024.
The mother is X’s primary carer although the parties both agree that if the mother is not permitted to relocate that by the time X is in school, she should live in an equal shared care arrangement. It is not in dispute that X has a loving relationship with each of her parents, that both parents are readily able to meet her needs and that the parents have demonstrated an ability to communicate effectively about matters concerning her care. In addition, the parents regularly attend significant events together for X’s benefit including birthdays, Christmas, and Easter as well as her sports lessons and medical appointments.
Although the parents each make minor allegations against the other parent, unlike many cases before this court, neither party raises ongoing concerns about family violence, drug and alcohol abuse or neglect.
It is not in dispute however that the mother has, at least historically, had mental health issues. Her case is that she needs to relocate to be near her parents due to her mental health issues and because she will be better off financially in City B due to job opportunities and cheaper accommodation. The mother says she will also be able to pursue tertiary education in City B with the support of her family.
Although the father has lived in Sydney his whole life, he works as a casual transport worker and other than social and community connections has no real ties to Sydney. His parents have recently moved to the Town C area, an hour and a half away, and his sister lives in City E.
The father says he will not move to City B.
The mother has made it clear that in the event the child is not permitted to relocate to City B, that she will remain in Sydney.
BRIEF BACKGROUND
The parties met when they were in primary school. They began dating in early 2018 when they were only about 20 years of age. The parties separated for most of 2020 but discovered the mother was pregnant with X in 2020. They lived together for a brief period between mid-2021 and late 2021 in a granny flat at the maternal grandparent’s home in Suburb F. The father then moved back in with his parents at their home in Suburb H.
Following X’s birth in 2021 the father spent regular and age-appropriate time with her. The mother’s evidence is that she encouraged the father to see her almost every day.[1]
[1] Mother’s trial affidavit filed 12 April 2024 at [40].
In early 2022 the maternal grandmother, Ms G (“the maternal grandmother”) moved to Town D. The mother remained living with her father at the Suburb F home.
In about early 2022 the mother told the father of her desire to also move to Town D. The father did not consent to this move.
In August 2022 the father filed his application initiating these proceedings and seeking orders restraining the mother from moving more than 20km from her (then) Sydney address.
In or about late 2022 the paternal grandfather moved to Town D. Upon the maternal grandfather moving to Town D, the main house at Suburb F was rented out and the mother and X were provided the granny flat at reduced rent.
In January 2023 orders were made providing for the father to spend time with X on a four‑week cycle of time, amounting to nine nights and 12 days in that cycle. At around this same time the father moved into a rental property with his cousin Ms K. Ms K is not strictly a cousin but shares a common relative with the father.
In about early 2024 the paternal grandparents moved to the Town C area, about an hour and a half from Sydney.
The father works casually as a transport worker for J Company, for whom he has worked for about eight years. The mother works as an educator, currently about 14 hours each week. Each receives modest income, in the vicinity of $40,000 per annum. The mother’s income maybe slightly higher when factoring in government benefits however the father only pays limited child support due to his income. The father also has the benefit of a work vehicle for his day to day use.
DOCUMENTS RELIED UPON BY THE PARTIES
The father relied upon the following:
(a)Outline of Case filed 6 May 2024;
(b)Amended Initiating Application filed 23 February 2024;
(c)Affidavit of the father filed 15 April 2024;
(d)Affidavit of Ms M (“the paternal grandmother”) filed 15 April 2024;
(e)Affidavit of Ms K filed 15 April 2024;
(f)Joint agreed chronology and joint agreed statement of issues filed 6 May 2024; and
(g)Family Report prepared by Ms L (family consultant) dated 13 February 2024.
The mother relied upon the following:
(a)Outline of Case filed 6 May 2024;
(b)Amended response to Initiating Application filed 30 April 2024;
(c)Affidavit of the mother filed 12 April 2024;
(d)Affidavit of Ms G (“the maternal grandmother”) filed 12 April 2024;
(e)Affidavit of Ms N (“the maternal aunt”) filed 12 April 2024;
(f)Affidavit of Ms O filed 12 April 2024; and
(g)Family Report prepared by Ms L (family consultant) dated 13 February 2024.
In addition, the following exhibits were tendered in the matter:
(a)F1 - Annexure F of the father’s affidavit filed 14.4.24 being Google maps from Sydney to Town D, to City B and Town D to P School;
(b)F2 - Annexures G1 - G6 of the father’s affidavit filed 14.4.24 - bundle of 6 photographs of the parties and X;
(c)F3 - Annexure H of the father’s affidavit filed 14.4.24 - Mother's payslip 2.2.24 to 15.2.24;
(d)F4 - Annexure J of the father’s affidavit filed 14.4.24 - photographs of X's room in father's home;
(e)F5 - Annexure I of the father’s affidavit filed 14.4.24 - screenshots of available rental properties in Sydney;
(f)F6 - Annexure A of affidavit of Ms M filed 14.4.24 - photograph of X's room set up by father at paternal grandmother's home;
(g)F7 - Annexure B of Affidavit of Ms M filed 14.4.24 - photograph of X's room set up by father at parental grandmother's home;
(h)F8 - Annexure C of Affidavit of Ms M filed 14.4.24 - text message exchanges between paternal grandmother and respondent mother;
(i)F9 - Annexure D of Affidavit of Ms M filed 14.4.24 - photo of X, mother and paternal grandmother at an Event in 2024;
(j)M1 – Q Hospital medical document - mother's diagnosis 2015;
(k)M2 – R Service documents - 2015, 2021, 2022 and 2024
(l)M3 - Mother's GP record, Dr T - 2020 – 2024;
(m)M4 - Psychiatrist report of Dr S 18 September 2020;
(n)M5 - Screenshots of Town D properties available for rental / purchase;
(o)M6 - Mother's payslips for the period 29 March 2024 to 11 April 2024 and 12 April 2024 to 25 April 2024;
(p)M7 - Screenshot of under offer and sold Suburb H property of the father's parents, sold early 2024;
(q)M8 - Google search in mid-2024 Sydney to City B return flights (mid-2024)
(r)M9 - Document headed as mother's dates of visits with maternal family and X 2021 to current; and
(s)J1 – Joint minute of orders received at 4:33pm on 15 May 2024.
THE EVIDENCE
It has not been possible to include every aspect of the evidence in these reasons. However, I have taken all the evidence into account. While I may not mention something specifically in these reasons, that does not mean I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The parties both gave evidence along with each of their mother’s, Ms K, the maternal aunt, and the family consultant Ms L.
The mother’s psychologist, Ms O, was subpoenaed but not available to attend court to give evidence, either in person or remotely. The father’s counsel did not object to her affidavit being in evidence subject to argument about her opinion being inadmissible and otherwise as to weight.
This is not a case which in my view turns on credit nor would it be in the best interests of the child to make credit findings about each of her parents, who at this stage have a solid working relationship. In any event, in my view the parents for the most part gave evidence in a forthright and honest manner.
There was some criticism levelled at the father and the paternal grandmother for not including in their affidavits that at the time of filing, the paternal grandparents were in the process of selling their house and moving to the Town C area. The father in his trial affidavit filed on 14 April 2024 states that he lives in a house about five minutes from his parents’ home.[2] However, it appears from the evidence that the paternal grandparents put their Suburb H property on the market in early 2024 and accepted an offer for sale a month or so later. It was submitted by the mother’s counsel that this was intentionally misleading in circumstances where a large part of the father’s case has been that he has the strong support of his family and lives nearby them.
[2] Father’s trial affidavit, at [87].
The father and his mother were each cross-examined about this, and each stated they did not believe the move was “relevant” as the grandparents continue to commute to Sydney five and six days each week for work, and are otherwise available to assist the father on weekends. Indeed, the paternal grandmother’s evidence was that she frequently travels for work and that she may actually be doing less hours on the road with the move. In addition, the paternal grandmother said she would frequently be in Sydney as her friends remain there, her doctor is in Sydney and her husband’s medical specialist, who he visits regularly, is also in Sydney.
Whilst I do not agree with the father and paternal grandmother’s assessment as to relevance, it is clear that the mother was aware of the situation,[3] and that it would therefore be raised at trial. It is hard to see how strategically it benefited the father not to include this information in his own affidavit, however, I cannot dismiss the possibility that this was a misguided decision by his solicitor. The father did not otherwise present as a witness who sought to mislead the court in any other way.
THE ISSUES IN THIS CASE
·To what extent is the mother isolated from her parents?
·To what extent is the mother’s isolation from her parents impacting her mental health?
·To what extent are the mother’s mental health issues impacting X?
·Would the mother be financially better off living in City B versus Sydney?
·Would the mother have greater stability of housing if living in City B?
·Could the father move to City B?
[3] See mothers trial affidavit at [115].
TO WHAT EXTENT IS THE MOTHER ISOLATED FROM HER PARENTS
It is not in dispute that until December 2023 the mother lived with at least one of her parents.
Furthermore, there is no doubt that geographically the mother currently lives a significant distance from her parents. City B is several hours by car to Sydney. Although there are relatively short flights between the two locations, the travel time is still likely to be several hours once travel to and from the airport, the check in and security process and any delays are factored in.
However, the evidence shows that the maternal family have travelled frequently to visit the mother in the last few years. A document produced by the mother indicates this was on average twice each month.[4] In addition, the father argues that the maternal grandparents, who are both educators, have the benefit of school holidays in which they could visit the mother more frequently if they so choose.
[4] Mothers exhibit, M9.
However, I accept that the grandparents, to use the colloquial expression, cannot just “pop in” to visit the mother or assist at short notice if they are not otherwise in Sydney. In this sense I accept that the mother is geographically, and to a degree, emotionally isolated from her parents.
I also accept that whilst the mother’s brother lives in Sydney, that he is in the defence force and frequently away on deployment. In addition, whilst the mother has an aunt who lives in Sydney and works as an educator, that aunt has two children with special needs and therefore limited availability to assist the mother. Further to this, whilst her grandfather lives Suburb U, about 40 min drive from the mother, their relationship is strained, and he is otherwise unavailable due to health or travelling.
Nonetheless the mother has lived most of her life in Sydney, has some friends and work colleagues who live there and has reconnected with the local social groups. It should also be noted that other than her family, the mother has no ties to City B, and I understand had not spent any significant time there prior to these proceedings. She has also mended her relationship with the paternal grandparents who I accept will provide as much support as they are able to, given they are now commuting from Town C and that Ms K, is also a potential source of support, albeit her visa status is by no means certain.
To what extent is the mother’s isolation from her parents impacting her mental health?
It is common ground that the mother has a history of mental health issues. This is in no way a criticism of the mother. It seems she has at all times sort appropriate assistance including consulting with her general practitioner Dr T, a psychiatrist Dr S and has seen her psychologist, Ms O, on a regular basis for a number of years.
The mother’s mental health issues became acute in or about year 11 at school and manifested firstly in a physical medical condition, and later in another condition. The mother was hospitalised for a significant period of time and had to undergo physiotherapy. She was ultimately diagnosed with a medical condition.
The mother’s evidence is that her anxiety has increased as a result of the breakdown of her relationship, her parent’s relocation, these court proceedings and the uncertainty about her future career path.[5]
[5] Mother’s affidavit at [84].
The difficulty in this case is that none of the mother’s treating health professionals were called to give evidence in this matter. Whilst Ms O was subpoenaed to give evidence, she was not available to attend as she was overseas on a holiday. As already indicated the father did not object to Ms O’s affidavit being tendered into evidence, subject to arguments about admissibility and weight. Other than this, the mother relied upon various documents which were tendered as exhibits. These included:
·M1 – medical records from Q Hospital dated mid-2015;[6]
·M2 – documents from R Psychology Services years dated 2015, 2021, 2022 and 2024;[7]
·M3 – the mother’s medical records of her GP including mental health plans prepared by Dr T;[8] and
·M4 – psychiatrist report of Dr S dated 18 September 2020.[9]
[6] Mother’s exhibit, M1.
[7] Mother’s exhibit, M2.
[8] Mother’s exhibit, M3.
[9] Mother’s exhibit, M4.
As none of the authors of these documents were called to give evidence, the court is now left to try and interpret what they mean. Did the mother suffer a chronic event in her teenage years which is now in the past? To what degree are her more recent mental health issues due to the unplanned pregnancy, the breakdown of the relationship, and this litigation and are they likely to subside in due course regardless of where she lives? How serious are those mental health issues? Indeed, the documentation raises more questions than it answers. For example, the report of Dr S provides a “differential diagnosis of [a disorder]”. Dr S also says, “the other significant change in her life was that she recently disclosed to her parents that she is bisexual.” Neither of these matters were raised in the mother’s evidence or otherwise raised in cross‑examination or submissions. Dr S also says he intended to review the mother’s mental state regularly and planned to have a family meeting to continue the assessment. However, no further reports from Dr S are provided.
There is also reason to question the factual basis for Dr S’s report. On page 1 of the report Dr S says “her mother passed away. Prior to her death, the panic attacks had reduced, however since last week she had to take time off work and had more panic attacks.” To my knowledge the maternal grandmother is alive and well, evidenced by her attendance and cross examination at the trial.
In regard to the material from the GP, the mother was cross-examined and conceded a plain reading of the documents shows the following:
8 March 2021
•Depression mild
•Anxiety extremely severe
•Stress moderate.
10 March 2022
•Depression normal
•Anxiety moderate
•Stress moderate
6 September 2023
•Depression normal
•Anxiety normal
•Stress mild
However not only were each of these assessments at a point in time, but the basis for the assessments is also entirely unknown, and the court has otherwise no guidance as to what this means in terms of the mother’s functioning. Whilst it is tempting to cherry pick parts of the remaining notes and endeavour to interpret them, this would not only be inappropriate but dangerous given the validity of that evidence is also untested.
In terms of the evidence of Ms O, the father’s counsel argued that much of her affidavit was not admissible as it was “opinion evidence” which he argued she was not permitted to give because she was not a court expert. I simply do not understand this argument. Ms O is a qualified psychologist who has treated the mother for some time. Her opinion falls squarely within her area of expertise and arises from her direct experience with the mother. The court regularly relies upon the opinions of treating health professionals in parenting matters. Just one example of this is the Full Court decision in Nussbaum & Nussbaum.[10]
[10] [2017] FCCA 1638 (“Nussbaum & Nussbaum”).
Father’s counsel also argued that there was no real explanation about why Ms O was not available to give evidence. However, given she was subpoenaed on 1 May 2024, only 12 days before the hearing and was seemingly on holidays overseas, I would have been surprised if she was available to give evidence. In such circumstances, I questioned whether the matter should proceed without her being available for cross-examination tendance. Neither party sought an adjournment.
In my view the affidavit of Ms O is clearly admissible. However, the question remains as to what weight I should put on her opinion. Ms O annexes two reports to her affidavit, one dated 4 October 2022 and the second on 9 April 2024.
In her first report Ms O notes that the mother’s anxiety levels have fluctuated over 18 months but that the ongoing support of her father was a stabilising factor and that her family had played “an instrumental role in the continuation of [Ms Danner]’s psychological well-being.”[11]
[11] Ms O’s affidavit, page [4].
Furthermore, Ms O states:
I have significant concerns for [Ms Danner]’s mental health and well-being if the court orders her to remain in Sydney and isolated from her immediate family. Additionally without support of her immediate family the best [Ms Danner]’s plans to continue her tertiary education will most likely be insurmountable.
In sum, should [Ms Danner] be ordered to remain in Sydney, [Ms Danner]’s mental health will be adversely impacted and she will be disadvantaged both economically and educationally.[12]
[12] Ms O’s affidavit, pages [4] – [5].
What does Ms O mean by isolated? Is she aware the family have been visiting frequently? What difference would it make if they spent more of their school holiday time with the mother? To what degree is the father able to fill the gap in terms of assisting the mother to continue her tertiary education?
The second report is in many respects a cut and paste of the first with the exception of the following paragraph:
However, since late 2022 [Ms Danner] has been without the strong and reliable support of a parent residing in Sydney following her father’s relocation to [City B] on securing permanent employment. [Ms Danner]’s parents have continued to be an ongoing and invaluable source of emotional and practical support to her and their grand-daughter. Notably, the current geographical distance between [Ms Danner] and her family is creating substantial distress for her and adversely impacting her mental health. [13]
[emphasis added]
[13] Ms O’s affidavit, page [6].
The difficulty is knowing what is meant by “adversely impacting her mental health”. In what way? To what degree? How is this likely to manifest? Is there any way to mitigate the impact?
There is no doubt that poor mental health could impact the mother’s parenting. In this respect I note Ms L in the family report stated as follows:
Children need present, consistent and active parenting, and it is essential that parents and caregivers are supported to maintain strong mental health and well-being. Poor mental health can lead to social isolation and financial disadvantage with broader impacts upon learning, friendships and children’s own physical and mental health. Child development and well-being is very much influenced by parental and caregiver mental health. [Ms Danner] demonstrates strong insight about her own coping and resilience, and it is likely that the impact of prolonged separation from extended family with its associated financial implications will be very detrimental to her well-being.[14]
[14] Family Report by Ms L at [59].
However, Ms L is a social worker, and only able to give evidence generally and not about the mother’s mental health specifically.
I do not accept the submission that the onus was on the father to require the mother to be psychiatrically assessed. It is her case to run. Furthermore, he does not suggest she has a psychiatric illness.
Further to this, the grandparents, who were fully aware of the mother’s mental health history, were both sufficiently satisfied as to her state of mind in 2022, so as to move several hours away. The maternal grandmother did so at a time when the mother had only recently separated from the father, and was essentially a single mother of a baby. The grandfather’s move was delayed, not through concern for the mother but because he was awaiting a position in the City B area. The maternal grandmother also conceded that both she and her husband knew that at that time the mother may not be permitted to relocate or that the process may take months or even years.
The maternal grandmother’s evidence was that they had “hoped” the mother would cope in their absence. There is no objective evidence that she has not. The mother has continued to work, socialise and even date since that time. I accept that she has leant more heavily on Ms O in recent times, increasing the frequency of her appointments, but this seems to be for a myriad of reasons, not least of which was this ongoing litigation.
Whilst the maternal grandmother remains concerned about what may happen, this appears little more than speculation on her basis. I understand given her experience with the mother, which in reality was only about ten years ago, that she would have concerns, but these did not seem sufficient enough to prevent her seeking a promotion in a rural area, knowing her daughter may not be able to follow her.
The father’s evidence is that his impression is the mother’s mental health has actually improved since her family moved away, that she is less stressed without her mother living nearby and that she is managing better without her. However, the mother says this is reflective of the father, who lacks any understanding of her mental health issues and that in the past he has discouraged her from seeking help. The father in turn denies this and says that he was guided by the mother as to how she was feeling and if she did not see the need to see her psychologist, he supported her decision. Ultimately, I accept the father’s evidence is of limited value as it is only his impression of the mother whom he only sees on a couple of occasions each week and that she may not share with him how she is really feeling.
Having assessed all of the material it is difficult to identify any evidence that details how the mother’s mental health is impacting her day-to-day functioning and to what degree.
To what extent are the mother’s mental health issues impacting X?
In any event, if the mother’s mental health is impacting her functioning, this does not seem to have had any flow on effect on X.
X is meeting all of her milestones, has a strong attachment to each parent as is otherwise described as a “vibrant, confident and friendly child.”[15]
[15] Family Report by Ms L at [4] and [6].
In this regard it is significant that the maternal grandmother moved when X was only six months old and the paternal grandfather when she was about 18 months old.
WOULD THE MOTHER BE FINANCIALLY BETTER OFF LIVING IN CITY B?
The mother currently lives in a granny flat at a reduced rate of rent on her parent’s property, however, that property is to be sold at the end of 2024. Her evidence is that it will be difficult to find suitable accommodation in the Sydney area at the same amount she is currently paying. The father tendered searches he had done on the internet for properties which were at a similar rate to the mother’s current rent.[16] The mother argued that these were in a most undesirable location and tendered searches of houses in Town D for the same rent, which she asserted were larger and more desirable.[17] Internet searches produced by the parties are inherently problematic. There is no way to know if they are representative or cherry picked to make a point. Whilst properties in a rural area may generally be cheaper than those in Sydney there may be rural communities and parts of Sydney that are exceptions to the rule. I also note that the maternal grandmother conceded she would provide the mother with financial support whether she lived in Sydney or in City B.
[16] Father’s exhibit, F5.
[17] Mother’s exhibit, M5.
However, the advantage of moving to City B is that the mother could stay with her parents until she was able to obtain accommodation and that she may be able to rent “securely” from relatives.[18]
[18] See mother’s trial affidavit at [90] – [91].
Otherwise, there is no evidence the mother is able to obtain better paid employment in City B. Whilst the mother says she has established there are vacancies in her field in City B,[19] she provided no specifics or any corroboratory evidence.
[19] See mother's affidavit at [100(d)].
Furthermore, the mother acknowledged there was a wide range of possible jobs in the Suburb F area although she says they did not fit her exact criteria. Nor does the mother assert it is more likely she would be able to work greater hours or for more pay in City B save that her parents and/or her grandmother could assist with the care of X so she could work more often, and would not be limited to jobs near X’s daycare. Although I note her parents both work full time and little is known about her grandmother. Furthermore, if the mother remains in Sydney, this assistance could be provided by the father and/or the mother would have greater opportunities to work due to the father having increasing care of X. Additionally, although the mother’s evidence is that her employment in Sydney is not secure, as it is privately funded, it is unclear what this means because she also says that her hours were reduced due to cuts to school funding.[20] In any event, there is no evidence the situation would be any different in public schools in City B. The mother would also face the same job limitations given she is only primary school and mainstream trained.
[20] See mother's affidavit at [107] – [108].
In addition, the mother’s case is that she wishes to go back to university to obtain a degree in education so that she is better able to provide for X in the longer term. She has made enquiries with a university in City B which offers such a degree and provides for in person learning, which is the mother’s preference. The mother conceded however that she has not made any enquiries as to obtaining such a degree at a tertiary institution in Sydney. I am simply unable to conclude the mother is more likely to be eligible to study at a university in person in City B rather than Sydney.
WOULD THE MOTHER HAVE GREATER STABILITY OF HOUSING IF LIVING IN CITY B?
It is difficult to see how the mother’s housing would be more stable in City B than in Sydney. She asserts that she may be able to rent more securely off relatives however, like any rental situation, the circumstances of such relatives may change. The mother also provides no specifics about what is on offer from these relatives. There is otherwise no evidence as to rental properties being more or less easy to obtain in City B.
COULD THE FATHER MOVE TO CITY B?
The father is a transport worker on a casual basis. His evidence is that although he is casual his work provides him with the flexibility he needs to care for X because he has worked for the same company for a significant period of time. As such, he would not expect to receive the same flexibility were he to work in any other casual job. However, he provided no corroboration from his employer to support this assertion.
Otherwise, the father’s evidence is that he now wishes to study. The mother was somewhat cynical about the timing of the father having applied to do a test to get into a degree course in the week before the trial, especially given his reluctances historically to “upskill” however, the evidence suggests he has been considering this for a little bit longer, given he mentions it in the family report. However, the father could presumably study at a number of institutions, including in City B or online.
There is also evidence to suggest the father is not committed to living in the Sydney area in the long term. In his trial affidavit,[21] and during the family report, he mentions moving to Region V.[22] He also conceded under cross-examination that he has also had a conversation with the mother about moving to a rural location, other than City B. However, I accept the father’s evidence that in relation to the latter conversation the father was exploring possible avenues of resolution with the mother which he had not seriously thought through.
[21] See father’s trial affidavit at [91].
[22] See family report of Ms L at [43] and [67].
In relation to this conversation, the mother’s counsel endeavoured to establish, through cross examination of the father and the family report writer, that the father’s willingness to potentially move anywhere else other than City B “as a family” was indicative of a desire to control the mother. It was suggested he was trying to make the mother reliant on him by isolating him from her family, with a possible desire to reconcile with her. However, the report writer was clear that she saw no evidence of this. I agree with her assessment. Rather the evidence shows that the father has a strained relationship with the maternal family and would not be comfortable living so close to them. He believes the maternal family is behind the mother’s desire to move and that they are the one’s effectively “in control”. His experience is also that the mother seems more stressed when she is near her family. The father’s impression is she is stronger and more stable now they have moved. His evidence on this point seemed genuine and whether that is the reality I accept that is his experience. There is otherwise no evidence of controlling behaviour save for a suggestion that the father said words to the effect that a lawyer would “rip the mother apart if they went to court.” If the father did say those words, I am of the view that he was expressing a genuine concern about the process rather than intending to threaten the mother. It was further suggested the father’s application to restrain the mother’s move was indicative of control, given he did not initially propose the same restraint on himself. However, I accept that since it was the mother who was wishing to move that it was a logical restraint to seek at that time.
Ultimately, the father has no real ties to Sydney and has at times at least turned his mind to living in a rural location such as Region V. In addition, he is only renting, and it is likely he could find casual work in City B and could pursue a degree, online if necessary, living in that location. However, whilst the father could move to City B, I accept he has no intention of doing so. He knows nobody in City B except the maternal family. The father has lived in Sydney all his life, most of his social connections are there and it is where he considers to be his home.
WHAT ARE THE LEGAL PRINCIPLES THE COURT APPLIES IN DETERMINING WHERE A CHILD SHOULD LIVE?
There is, of course, no separate category of relocation cases, and I am not to determine the question of “relocation” as a separate issue. This is a parenting case, in which I must apply the law, and determine orders having the children’s best interests as my paramount consideration. They are not the only interests I can consider. I also take into account the rights of parents, including their right to determine where they live.
I note the observations of the Full Court in Adamson & Adamson [2014] FamCAFC 232 at [66]:
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
The following propositions can be distilled from the authorities, including AMS v AIF [1999] HCA 26 (“AMS v AIF”),A & A: Relocation Approach [2000] FamCA 751; (2000) FLC 93-035; 26 Fam LR 382, U v U [2002] HCA 36 (“U v U”), Taylor v Barker [2007] FamCA 1246; (2007) FLC 93-345, KB & TC [2005] FamCA 458 and Morgan & Miles [2007] FamCA 1230:
(a)The best interests of the children are the paramount, but not the sole consideration;
(b)The person seeking to move does not need to provide compelling reasons for the relocation sought;
(c)The court must evaluate the competing proposals, giving consideration to how each proposal will provide advantages and disadvantages for the children’s best interests;
(d)The question of whether there should be a relocation cannot be treated as a separate or discrete issue to that of the question of residence;
(e)Neither party bears an onus to establish that an order permitting or restraining relocation is in the children’s best interests; and
(f)The Court must weigh the competing proposals and consider all the relevant factors, including the right of freedom of movement of the parent who wishes to relocate.
As observed by Kent J in Heath v Hemming (No 2) [2011] FamCA 749 at [101]:
In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
I must make my way through the legislative pathway.
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) directs the Court to make such parenting orders as it thinks “proper”, and how the Court’s discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson,[23] at [18] said:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
[23] [2017] FamCAFC 21.
Given this trial commenced on 13 May 2024 it is subject to the new amendments to the Act which commenced on 6 May this year.
The most significant of those amendments for the purposes of this application is to section 60CC of the Act which now states as follows:
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Furthermore, I note the objects set out in the Act at section 60B as recently amended:
60B Objects of Part
The objects of this Part are:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Article 7 of the Convention on the Rights of the child provides for the right [of the child] to know and be cared for by his or her parents.[24]
[24]United Nations Convention on the Rights of the Child (“the Convention”) at Article [7.2].
BEST INTERESTS OF X
I have given careful consideration to each of the factors in section 60CC although I shall only refer to the matters which have been relevant to my determination.
In this case whilst the parties’ affidavits contained some criticisms of the other parent and/or their family, the parties did not ultimately waiver from their position that it would be in X’s best interests to spend as much time as is practicable with each of her parents. The overwhelming evidence in this case is of two excellent parents, from solid families who only have the best interests of their child at heart. There are no family violence, abuse, neglect or other harm issues. It is not in dispute that X is developing psychologically, physically, and emotionally as to be expected. Although X is too young to express a view, she is by all accounts a delightful child who has excellent connections with both her parents, is forming strong attachments with both of them, and each parent is able to more than adequately meet her needs.
The following are a number of key passages from the family report which were not in dispute:
Both parents demonstrated care and affection for [X]. There is strong evidence that both [Mr Manion] and [Ms Danner] are involved in [X]’s life and hold deep love and affection for her. [Mr Manion] and [Ms Danner] were both very attentive to [X]’s needs, each checked in with her, offered her food and water and provided warmth and affection (which was reciprocated by [X]). When [X] expressed distress or concern, each parent was immediately attentive and reassuring. [25]
….
[Mr Manion] and [Ms Danner] recognised the ability of the other to meet [X]’s needs. Each of them said that the other parent “wants what is best for [X]” – but both noted they “go about it in different ways”. Each parent provides [X] emotional, social and financial support. [26]
…
A working co-parenting relationship between [Ms Danner] and [Mr Manion] was observed throughout the day. They communicated about [X]’s care and chose to place her in each other’s care so they could each undertake their interview[27]
…
[Mr Manion] and [Ms Danner] very clearly love and care for [X]. [X] enjoys the benefit of two parents that can hold her in mind and (often) work together in her best interests. [Mr Manion] and [Ms Danner] both believe that they are generally able to communicate and negotiate quite well with each other. This was observed during the process of interview, when both negotiated the shared care of [X] throughout the day. In addition, both parents reported successful communication around important issues such as toilet training, bedtimes, and routine.[28]
In general terms, both [Mr Manion] and [Ms Danner] can work well together. When one is sick, there is evidence that the other will step in and assist if possible. [Mr Manion] and [Ms Danner] both attend [X]’s medical appointments together. An effective co-parenting relationship between her parents will be very beneficial and important to [X] as she grows older. If her parents can continue to communicate effectively and act in her interests, [X] will learn to resolve conflict and benefit from demonstration of healthy relationships.[29]
[25] Family Report by Ms L at [32].
[26] Family Report by Ms L at [34].
[27] Family Report by Ms L at [51].
[28] Family Report by Ms L at [53].
[29] Family Report by Ms L at [54].
I also accept the submission that if the mother is permitted to move to City B, she would do everything in her power to facilitate the relationship between X and the father. The evidence shows that she has always done so and that recent changes to her proposals to include paying for his flights, allowing him to stay in her accommodation or with her family, and to provide a car are not just “window dressing” but a genuine endeavour to make the proposed move as workable for the father as possible. Further evidence for this proposition is that the mother has actively and successfully worked at ensuring X has a relationship with the paternal family despite initial tension in her own relationship with them.
Likewise, I accept that the maternal grandmother would do everything she could to support the relationship between X and the father. It was put to the father under cross-examination that she said words to the effect that “we are connected as a family, and she would always support him as [X]’s father” and the father said, “that sounds like something she would say”.
On the other hand, whilst the father and paternal family were criticised for not similarly facilitating a relationship between the maternal family and X, this is somewhat of an unfair attack given there has not been the same need to do so, given X has been in the primary care of the mother, who is close to her family. I did not form the impression from the paternal grandmother that she had any ill will to the maternal family, just that she did not really know them. I also do not see the father’s proposal of alternate weekends in the event X was in his care as an attempt to limit the mother’s time. It appears he was simply “mirroring” the orders she proposed without much thought.
FREEDOM OF MOVEMENT
As already stated, the bests interests of the child are the paramount concern but not the sole consideration. The Court must also take into consideration the right of parties to live where they wish. As observed by Kirby J in AMS v AIF:
Thirdly, 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. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.[30]
Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modem family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.[31]
(Footnotes omitted)
[30] AMS v AIF at [144].
[31] AMS v AIF at [145].
Consequently, the Full Court in Oswald & Karrington noted the requirement of the Court to fully consider whether orders can be made which do not restrict the partes’ freedom of movement.[32]
[32] Oswald & Karrington [2016] FamCAFC 152; (2016) FLC 93-726 (“Oswald & Karrington”) at [17].
The mother wants to move to City B. Whilst she is not required to provide a compelling reason for this desire, her reason is still relevant as it may go to other considerations such as whether she will promote an ongoing relationship of X with the father.
In this case, the mother says she wishes to be near her family, for emotional, practical, and financial support which would in turn enable her to study and better her circumstances.
The father, who has the same freedom of movement does not wish to live in City B where he knows no one other than the maternal family from whom he is estranged.
I accept that each party is genuine in their wishes and are not motivated by matters such as desire to control the other party or to sabotage the other party’s relationship with the child or their extended family.
Furthermore, given, but for the move, the parties’ each propose a shared care arrangement, this case can be distinguished from the cases where the child is to have one primary caregiver who may have to undertake that role “in a place not of that parent’s choosing.”[33]
ASSESSING COMPETING PROPOSALS
[33] Oswald & Karrington at [17].
Advantages of moving to City B
The mother, who is X’s current primary carer, and will be for the next three years, would be happier, which is likely to enable her to parent to the best of her ability.
The mother would have the emotional and practical support of her parents, grandmother, and sister, to enable her to increase her hours of work and to study.
The mother would be able to stay with her parents initially whilst she obtains her own accommodation.
The mother may be able to obtain more secure rental accommodation from family.
The mother may be able to obtain cheaper rental accommodation in City B than in Sydney.
X would have the benefit of living near and spending frequent time with their maternal family who can have a number of interests such as cooking, gardening, and music from which she would no doubt benefit.
X could maintain contact with her father and through visits each fortnight including block time once per month, long periods in the holidays and facetime.
X could maintain her relationship with the paternal family during the father’s time in Sydney and otherwise through facetime.
The father and the paternal family could also see X when they visit the father’s sister in City E.
Disadvantages of moving to City B
X’s life would entirely change. She is used to having both parents heavily involved in her care and spending time with each of them on a regular and frequent basis. This would immediately cease.
X is likely to miss her father and experience loss at the removal of one of her primary carers in her day to day life.
X’s relationship with her father in the long term would be entirely different. He would go from being one of her primary carers to a secondary figure in her life.
X would not have the benefit of her father attending all of the other routine day to day events that each parent has been involved in including sports lessons, medical appointments, family dinners, birthdays and other special occasions, nor will he be readily able to attend school events in future.
The father would be unhappy which may affect his ongoing parenting of X.
The father would have to take time off or rearrange his work to visit X in his block time, which could result in him losing his job. This may have a financial consequence which in turn could impact on his ability to visit X.
The mother’s proposal that she move out of her home in City B so the father could stay there during visits with X is unlikely to be sustainable in the long term. She may re-partner at some stage and/or have more children which would require her new family unit to move out for this to occur. It is unlikely the father would be prepared to stay with the maternal grandparents with whom he has a strained relationship. Therefore, it is likely the father would have to pay the costs of accommodation in City B.
X would spend a lot of her time with the father in a hotel or like accommodation rather than his home in which she has her own bedroom, toys, and other familiar items. Visits to Sydney would be limited to holidays and a weekend each month, which once X is at school, would be essentially one clear day.
X would be required to travel for ten hours for each visit to the father in Sydney. Whilst X is used to travel, including flying interstate, it is a very different thing to be doing so on a monthly basis, and to have to return after a one or two day visit.
X would have less frequent time with her paternal family.
The mother has never actually lived in City B and has no apparent friends or other connections to the community other than her extended family.
The mother does not have certainty of employment in City B.
Advantages of living in Sydney
X would have the ongoing benefit of being cared for by both of her parents, to whom she is strongly attached and who both provide her with excellent care.
X would benefit from witnessing her parents ongoing ability to communicate about her needs and meet those needs as a family unit, albeit one in which her parents are no longer together.
X would be able to spend time with each of her parents in what she considers to be “her home”, in her own bedroom and surrounded by her own things.
X would have the ongoing benefit of each of her parents attending routine day to day events including sports lessons, medical appointments, family dinners, birthdays. and other special occasions and in future her school and school events.
X would not have to travel for several hours each way to visit her father in Sydney.
X would be able to see her paternal family on a regular basis as her paternal grandparents continue to commute to Sydney for work and other commitments on a regular basis.
X would be able to see her maternal family on a regular basis who have a history of travelling to Sydney on a frequent basis. In addition, the maternal grandparents are educators who have the benefit of time off during each of the school holidays to visit the mother. The mother also works in education and would likewise have the benefit of school holidays to travel to visit her parents on a regular basis. In between this time X could maintain contact with her maternal family through facetime.
The parents would share the care of X which would enable the mother to increase her hours of work and to study.
The mother would have the practical support of the father to assist with the care of X if, for example, the mother or X were unwell.
The mother has lived in Sydney most of her life, has some family, friends, and work colleagues there and some connections to the community such as through her social groups.
The maternal family could apply the cost of airfares they would otherwise pay for the father to assist the mother.
The mother could continue to receive regular face to face support from her psychologist.
The mother has a current contract for employment in Sydney.
Disadvantages of living in Sydney
The mother would be unhappy and would likely feel some isolation from her family, which may impact her parenting of X.
The mother may require more frequent counselling which would come at an additional cost.
The mother would not have the immediate practical support of her family on a day-to-day basis to enable her to study or work extra hours, or if she or X are unwell.
X would spend less frequent time with her extended maternal family than if she lived nearby in City B.
The mother would incur the cost of having to travel to see her family in City B.
Renting in Sydney may be more expensive than in City B.
WHAT ORDERS ARE IN THE BEST INTERESTS OF THE CHILD?
This is a finely balanced case. It is also a rare case which involves two good parents, who are both respectful of each other, are able to communicate and cooperate in a positive manner, and both clearly want what is best for their child. The grandparents on each side are likewise good people who provide the parties with ongoing support both practically and emotionally. X is very lucky in this respect. It is therefore not surprising that X is thriving.
Nonetheless the mother’s case is that in order to provide X with optimal parenting into the future, she needs the practical and emotional support of her family and for this to occur, she needs to be living near them in the City B area.
The authorities have long recognised the potential impact of the happiness of the primary carer on a child as being a relevant factor in relocations cases. The majority of the Full Court in Taylor v Barker,[34] said as follows:
It will be seen from the passages from his Honour’s judgment which we have set out throughout these reasons, that this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment. In such a case where, as his Honour noted, the mother wanted to marry and be with the father of her second child, it could not, in our view, be said that his Honour was wrong in elevating this factor together with the impact on the mother and on the subject child of her not being permitted to relocate to join the man whom she wanted to marry, to be the decisive factor or factors in this case.
[34] [2007] FamCA 1246; (2007) FLC 93-345; 214 FLR 433; 37 Fam LR 461 at [113].
In Nussbaum & Nussbaum the Full Court stated:
Likewise in the current matter. The primary issue related to the Mother’s “happiness”, and more particularly her delicate state of mental well-being (for which there was significant evidence) arising from her inability to return to her native homeland and her family. Her state of mental “well-being” understandably is crucial to her ongoing care for the children. Lest it not be clear: the proper inquiry is in relation to the making of Orders that are in the best interests of the children, [Y] and [X]. It is not an inquiry, per se, into whether the Mother should be permitted to return to (country omitted) without any other point of reference. That inquiry cannot be, and is not, divorced from the primary inquiry regarding the framing of Orders that, pursuant to s.60CA of the Act, are in the best interests of the children.[35]
[35] Nussbaum & Nussbaum at [4]. In this regard, see the comments by Hayne J in AMS v AIF at [219].
However, in Nussbaum the court went on to say:
Indeed, but for the expert evidence of Ms A, and the oral evidence of the Family Consultant, both of which provided the one factor regarding the Mother’s mental well-being that was determinative (appropriating the word used by the Full Court in Taylor v Barker), it is more likely than not that the Mother would not have been permitted to return to (country omitted) with the children.[36]
(emphasis added)
[36] Nussbaum & Nussbaum at [6].
The difficulty in this case is that the evidence of the mother’s treating health professionals has been unable to be tested and the exact impact on the mother’s wellbeing is unclear. In the end, I am being asked to assess this, which is the difficulty here. The evidence about the mother’s mental health and its impact on her parenting is unclear and has been unable to be tested. Consequently, I cannot be satisfied that the mother’s mental health will be impacted such that it would affect her parenting of X.
In any event, the mother, to her credit has always sought treatment for her mental health and it is evident that she will continue to do so. In this regard she appears to be well supported by her psychologist and general practitioner.
There is no doubt the maternal grandparents are worried that their daughter may suffer another chronic episode as she did in her teenage years. However, having seen the mother be cross‑examined and in light of the other evidence, it is my view she is more resilient then perhaps they give her credit for. I note the mother’s evidence was that she told her psychiatrist Dr S in 2020, “her father does not “understand” her and her mother treats her like a child”.[37] Under cross examination she agreed this statement was “very accurate in 2020” however, this was only four years ago.
[37] Mother’s exhibit, M4 at [2].
In my view each of the parent’s presented as capable people who are both considering ways to better their situations. Whilst the parents will continue to have limited incomes for the foreseeable future, I do not accept that they will be living in “poverty” and that X is destined for an “ordinary life”. The parties’ parents should not have to support them indefinitely and on the evidence, there is no reason to believe they will have to.
For all of these reasons I propose to make orders that X remain living in the Sydney area and be cared for by each of her parents.
FORM OF ORDERS
The parties are in agreement that upon X starting school that she live in an equal shared care arrangement, although, they differ on how this should be configured. The mother proposes a “3,3,2,2” arrangement being 3 days with each parent alternating with 2 days with each parent. The father proposes a week about arrangement. The mother says her arrangement should be preferred because it provides for more contact between the parents and therefore opportunities to share information and to be involved in extracurricular activities. The father was of the view that the week about would be less confusing and would reduce the number of changeovers whilst still allowing for each parent to attend extracurricular activities.
The report writer was generally in support of the father’s position primarily because of the reduction in changeovers.
In my view the mother’s proposal is preferable whilst X is adapting to her early years of primary school as she may benefit from more frequent time with each parent and smaller blocks. However, I agree that in due course, a week about arrangement would be simpler and reduce the number of transitions. Accordingly, I propose to order the mother’s arrangement for the first two years of primary school and thereafter week about.
Otherwise, I requested the parties prepare a joint minute setting out the orders that were agreed and those that remained in dispute. This became an exhibit in the matter.[38]
[38] Joint exhibit 1.
Despite making it clear that I required the parties to address me as to why I should prefer one set of orders to another, there remain a number of orders that have not been addressed.
The first issue on which I was not addressed is how X’s time should progress between now and when she attends school. Each party proposes an additional night each fortnight but in different configurations, with the father adding a night to existing blocks whereas the mother proposes a separate single overnight each fortnight. Given that each party proposes that ultimately X’s time is to be consolidated into longer blocks (be it one or two), I prefer the orders proposed for the father which are in keeping with this.
The second issue on which I was not addressed was holiday time. Although each party appears to propose a half holiday arrangement from when X attends school, the father proposes a carve out for Christmas. The father also proposes a more limited holiday arrangement for the mother until school commences. Given the mother is likely to want to visit her parents during holidays, I propose to make the half holidays order start immediately. Furthermore, I do not propose to make an order for Christmas but rather to alternate the halves of the holidays. This will result in each parent having the whole of the Christmas period in alternate years and will again enable the mother to travel to City B for an extensive period for this purpose.
Despite the minute indicating changeover was not agreed, the wording proposed by each parent appears nearly identical. I shall make that order by consent. Orders 21 and 23 of the mother’s proposed orders which are said to be “not agreed” are almost identical to the orders proposed by consent so I assume that is an oversight.
I was not addressed by either party as to orders 5.4 to 5.6 and 6.2 and 6.4 of the father’s proposed orders which were labelled as “not agreed”. I am none the wiser as to why they are objectionable but given no submissions were made I do not propose to make them. In any event, as the parties have a good working relationship, I do not believe they are necessary.
I do not propose to make the order sought by the father restraining the parties from moving more than 20 kilometres from their current residences but rather will restrain them from moving X’s residence from the Sydney metropolitan area. The parties have been able to make decisions in X’s best interests, and will have a shared care arrangement which will necessitate them living within a reasonable distance of each other. I am confident given the evidence, that they will do so without the need for a restraint.
For completion and for want of any doubt, I note the parties agree that Region V is not in the Sydney Metropolitan area.
Otherwise, I will make the remaining orders that were agreed by consent.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 15 July 2024
0
11
3