Marsh and Davidson

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARSH & DAVIDSON

[2016] FCCA 2428

Catchwords:
FAMILY LAW – Parenting – whether child should live with the mother in a town on the (omitted) of New South Wales, or with the father in the (omitted) region of New South Wales.

Legislation:

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

Cases cited:

MRR v GR [2010] HCA 4

Applicant:

MS MARSH

Respondent:

MR DAVIDSON

File Number:

WOC 932 of 2014

Judgment of:

Judge Altobelli

Hearing dates:

8 - 9 September 2016

Date of Last Submission:

9 September 2016

Delivered at:

Wollongong

Delivered on:

2 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr Rosic

Solicitors for the Applicant:

Kells The Lawyers

Counsel for the Respondent:

Ms Humphreys

Solicitors for the Respondent:

DGB Lawyers

Counsel for the Independent Children's Lawyer:

Mr Gutteres

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW Wollongong Family Law

ORDERS

THE COURT ORDERS THAT:

All previous parenting Orders be discharged.
The Mother and Father have equal shared parental responsibility for the child X (born (omitted) 2011) in relation to the care, welfare and development of a long-term nature involving the child to include, but not be limited to, issues about:
(a)the education of the child – both current and future;
(b)the religion of the child;
(c)the health of the child;
(d)any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.
The child lives with the Mother.
On or after 15 December 2016 the Mother be permitted to relocate the child’s residence to (omitted).
The child spends time with the father, subject to the special occasion arrangements as set out in Orders 6 and 7 below, as follows:
(a)During school term, in a four week cycle as follows:
(i)In Weeks 1 and 3, from the end of school (or 3pm on a non-school day) Friday until 3:30pm Sunday (with the father to collect the child from school or from the mother’s home on non-school days, and with the mother to collect the child from the father’s home at the end of the visit);
(ii)In Week 2, from the end of school Friday (or 3pm on a non-school day) until 4pm Saturday, with such time to occur in the (omitted) area (and in the event that the father is able to stay for the entire weekend, the time is extended until 4pm Sunday) (with the father to collect the child from school or from the mother’s home on non-school days, and with the father to return the child to the mother’s home at the end of the visit);
(iii)The four week cycle is to be suspended during school holiday periods and is to resume at Week 1 in the first week of the new school term;
(b)For half of each of the midyear school holiday periods as agreed, and failing agreement as follows:
(i)For the first half of such periods in odd numbered years; and
(ii)For the second half of such periods in even numbered years;
(iii)And in the event of an uneven number of nights, the child is to spend the additional night with the Father.
(c)In the school holiday period in December 2017/January 2018 and in each alternate New South Wales school holiday period at the conclusion of term 4 thereafter:
(i)From the conclusion of school on the last day of term 4 until 1.00pm on 25 December;
(ii)From 5.00pm 1 January until 5.00pm 8 January;
(iii)From 5.00pm 15 January until 5.00pm 22 January.
(d)In the school holiday period December 2018/January 2019 and in each alternate New South Wales school holiday period at the conclusion of term 4 thereafter:
(i)From 1.00pm on 25 December until 5.00pm on 1 January;
(ii)From 5.00pm on 8 January until 5.00pm on 15 January;
(iii)From 5.00pm on 22 January until 5.00pm on 29 January or until 5.00pm on the final full day in the school holiday period if this is earlier than 29 January.
(e)The mother is to deliver the child to and collect the child from the father’s home at the start and end of all school holiday periods.
(f)At such other times as are agreed to between the parents.
The child spend time with the Father on special occasions as set out below:
(a)From 1.00pm Easter Sunday until the commencement of school on the following Tuesday (or until 9.00am if it is not a school day) in 2017 and in each alternate year thereafter.
(b)From the conclusion of school on the Thursday immediately preceding Good Friday (or from 3.00pm if not a school day) until 1.00pm Easter Sunday in 2018 and in each alternate year thereafter.
(c)If the Father is not already spending time with the child on the weekend including Father’s Day from 5.00pm on the Saturday immediately before Father’s Day until the commencement of school on the following Monday and there will be no changes to the scheduling of the Father’s time with the child due to Father’s Day unless agreed by the parents.
(d)If the child is not already spending time with the Father on the Father’s birthday from 9.00am until 7.00pm on the Father’s birthday if the birthday is on a non-school day and from the conclusion of school until 7.00pm if the birthday falls on a school day.
(e)If the child is not already spending time with the Father on the child’s birthday from 9.00am until 2.00pm if the child’s birthday falls on a non-school day and from the conclusion of school until 6.00pm if the child’s birthday falls on a school day.
Unless otherwise agreed to between the parents the child shall live with the Mother at the following times and any other Order providing for time contrary to this Order is suspended to facilitate this Order:
(a)From 2.00pm 29 September 2016 until 2.00pm 6 October 2016.
(b)From 6.00pm Sunday 18 December 2016 until 1.00pm 25 December 2016.
(c)From the conclusion of school on the Thursday immediately preceding Good Friday (or from 3.00pm if not a school day) in 2018 and in each alternate year thereafter.
(d)From 1.00pm Easter Sunday until the commencement of school on the following Tuesday (or until 9.00am if it is not a school day) in 2018 and in each alternate year thereafter.
(e)If the Mother is not already spending time with the child on the weekend including Mother’s Day from 5.00pm on the Saturday immediately before Mother’s Day until the commencement of school on the following Monday and there will be no further changes to the scheduling of the Father’s time with the child due to Mother’s Day unless agreed to by the parents.
(f)If the child is not already spending time with the Mother on the Mother’s birthday from 9.00am until 7.00pm on the Mother’s birthday if the birthday is a non-school day and from the conclusion of school until 7.00pm if the birthday falls on a school day.
(g)If the child is not already spending time with the Mother on the child’s birthday from 2.00pm until 7.00pm if the child’s birthday falls on a non-school day and from 3.00pm until 6.00pm if the child’s birthday falls on a school day.
If the Father is spending time with the child in accordance with Order (5) above and there is a public holiday immediately after the weekend the Father’s time with the child shall be extended so that it concludes at the commencement of school on Tuesday.
If any Order herein provides for a parent’s time with the child shall conclude at the commencement of school and the relevant day is not a school day the parent’s time with the child is to conclude at 9.00am.
If any Order herein provides for time with the child to commence at the conclusion of school and the relevant day is not a school day the parent’s time with the child shall commence at 3.00pm.
The time for changeover of the child during school holiday periods shall be 5.00pm unless otherwise specified in the Orders herein.
For the purpose of these Orders each New South Wales school holiday period shall be deemed to:
(a)Commence at the conclusion of school on the last day of the school term; and
(b)Conclude at 5.00pm on the final day in the school holiday period prior to the commencement of the next school term.
The time the Father is to spend with the child pursuant to Order 5(a) hereof shall be suspended for the duration of each New South Wales school holiday period and the Father shall recommence spending time with the child during the following school term as if the suspension of the alternate week time set forth in Orders 5(a) did not occur.
If Easter falls within a New South Wales school holiday period the child shall spend time with the Mother and the Father in accordance with the Orders for Easter time herein and these Orders shall supersede the Orders for school holiday time herein so far as the Orders are inconsistent only and the balance of the school holiday period outside of the period from 3.00pm on the Thursday preceding Good Friday until 9.00am on the Tuesday immediately following Easter Monday shall be divided so that the child spends equal time with each parent during the remainder of the relevant New South Wales school holiday period.
The child have liberal communication with both parents and other significant people by telephone, Skype and any other agreed form of communication.
For the purposes of Order 5(a)(ii), the Mother shall pay reasonable accommodation costs for one (1) night’s accommodation for the father and the child, with the father to provide the mother with one (1) weeks’ notice of any booking he has made.
The mother is permitted to enrol the child at (omitted) Primary School in (omitted), conditional upon the mother being responsible for the payment of any school fees and other costs associated, unless otherwise agreed to between the parents.
Both parents are to refrain from making critical or derogatory remarks about each other or members of each other’s families in the presence or within the hearing of the child; and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their families in the presence or within the hearing of the child.
Both parents will ensure that the other parent is kept informed of:-
(a)any serious medical problems or illnesses suffered by the child, with the other parent to be notified as soon as possible;
(b)any medical emergencies involving the child, with the other parent to be notified immediately;
(c)any medication that has been prescribed for the child that needs to be taken during the time the child is with the other parent, with the other parent to be notified at the time of changeover;
(d)any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);
(e)any social, school or religious functions which the child is involved in or invited to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;
(f)the telephone contact number and residential address of the parent, with any changes to be advised within twenty-four (24) hours;
(g)any other matter relevant to the welfare of the child, with the other parent to be notified as soon as is reasonably practicable.
Each parent will provide to the other parent full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the child.
Each parent is permitted to liaise directly with the child’s pre-school(s), school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about the child’s progress and that each parent will authorise the pre-school(s), school(s), sporting bodies and/or other organisations to facilitate this.
Each parent will provide the necessary authorities to the Principal of the child’s school(s) to ensure that the school forwards to both parents copies of the child’s school reports as they fall due along with copies of all school circulars, newsletters, school photo order forms and invitations to any school activities which parents are invited to attend.
For the purposes of parental communication regarding long-term decision-making, the following communication plan is to be implemented, unless as otherwise agreed to between the parents:-
(a)The parent who wishes to raise the issue must do so in writing, preferably by email;
(b)The other parent must respond within fourteen (14) days;
(c)The instigating parent must reply to that response within fourteen (14) days;
(d)Further direct negotiations are to occur within the following fourteen (14) days;
(e)In the event no agreement is reached within the forty-two (42) day period (unless it is otherwise mutually agreed to in writing between the parents to extend this time) both parents must make contact with Relationships Australia in (omitted) and thereafter do all acts and things as are necessary to arrange for an urgent family dispute resolution (mediation) session with a view to resolving the issue in dispute.
Each parent is restrained from involving the child in the parental communication (including but not limited to asking the child to pass messages to the other parent).
Both parents and member of their respective families are entitled to attend all events involving the child including, but not limited to:-
(a)sporting fixtures;
(b)extracurricular activities that allow for parental attendance or participation;
(c)
school functions and events that allow for parental attendance or participation

AND the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless as otherwise agreed to between the parents.
In the event either parent intends to travel with the child for a holiday out of the State of New South Wales, they are to advise the other parent no later than seven (7) days prior to the intended departure date, with such advice to include departure and return dates, general holiday location information and emergency contact details.
Each parent is restrained from removing the child from the Commonwealth of Australia without the consent of the other parent. In the event such consent is provided, the parent with whom the child travels overseas with will provide to the other parent full travel particulars in writing, at least twenty-eight (28) days prior to the date of departure, including but not limited to an itinerary, accommodation details and emergency contact numbers.
Each parent will follow any recommendation made by Ms M (and/or other staff from (omitted)) and Ms K (and/or other staff from the (omitted) daycare centre regarding any therapeutic interventions necessary (including counselling or psychological support, paediatric assessment, speech pathology) to support the child in his transition to school in 2017 and his move to (omitted).
By consent, the child henceforth shall be known as X and for the purposes of this change of name:
(a)That the mother is authorised to apply to the Registrar Births, Deaths and Marriages of NSW so that the child registered as X (born (omitted) 2011) now be registered as X (born (omitted) 2011), noting that Marsh will be a middle name;
(b)Pursuant to Sections 28(3) and 28(5) of the Births, Deaths and Marriages Act NSW 1995, the Registrar register the child's name in the form specified in Order 22(a) herein;
(c)The mother shall take all reasonable steps to serve a sealed copy of these Orders upon Registrar Births, Deaths and Marriages of NSW within 28 days of receipt of a sealed copy of these Orders;
(d)The mother shall be responsible for all costs associated with this change of name, including the production of a new birth certificate for the child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 932 of 2014

MS MARSH

Applicant

And

MR DAVIDSON

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about X, born on (omitted) 2011, who is now 5 years old. X is a fortunate little boy. He has two parents who love him very much, and he comes from a completely functional family background. He is surrounded by people who only want the best for him. X’s parents, however, cannot agree whether he should be living with his mother in a town on the (omitted) of New South Wales, or whether he should be living with his father in the (omitted) region of New South Wales.

Background

X’s mother is the Applicant in this case. She is a (occupation omitted) and is 32 years old. His father is the Respondent. He is a (occupation omitted) and is 33 years old. The parents commenced a relationship in 2007, and then started living together later that year. They then moved to (omitted) in 2009 for the purposes of the Mother’s work.
The parents separated in July 2012. They both returned to the (omitted) region, albeit separately, in 2013. It seems that after separation the Father spent regular time with X in accordance with an amicable arrangement with the Mother. This time included overnight time. Between the date of separation and October 2014 when the present proceedings were commenced, there were a number of contentious issues between the parents in relation to the arrangements for X but, the Court observes, none of these issues were particularly serious.
In October 2014, X’s mother commenced the present proceedings. She sought parenting orders. The Father filed a Response. On 5 December 2014 Orders were made by consent that X live with his mother, and spend time with his father each Tuesday from 3:00pm to 6:00pm, each Friday from after school until 10:00am the following day, and each Sunday from 11:30 am to 7:00pm.
In May 2015 it seems that the Mother met, and eventually formed a relationship with her current partner, Mr D, who lives in a town on the (omitted) of New South Wales. A relationship commenced. X was eventually introduced to Mr D. The Father was also introduced to Mr D.
It seems that it was in about September 2015 that the Mother first raised the possibility of her relocating with X to the (omitted), with the Father. She cited as her reason, primarily, a lack of employment opportunities in the (omitted).
In the last quarter of 2015 a number of things appear to have happened. X travelled with his mother to the town on the (omitted) where she wishes to relocate. The Mother commenced a temporary contract as a (occupation omitted) with a (employer omitted) in that town on the (omitted). The Mother and her partner became engaged with plans to marry in (omitted) 2017. Also, it seems reasonably clear that in the last quarter of 2015, the Father had made it very clear to the Mother that he did not consent to X relocating.
In December 2015, the Mother and X moved into the home of the Maternal Grandmother in the (omitted). Also, it appears the Mother obtained a 12‑month position in the (employer omitted) where she had been working in the last quarter of 2015. She accepted this position.
In December 2015 the Father filed an interim application seeking to prevent the Mother from relocating. On 18 December an interim Order was made to that effect. An Independent Children’s Lawyer was appointed for X.

An interim hearing was in fact held on 26 February 2016, and Orders were made preventing the Mother from relocating X more than 20 kilometres from her current home address. Reasons for Judgment in this matter were published on 3 March 2016. In addition, the matter was set down for Final Hearing.
The year 2016 appears to have been quite a difficult one for X. He displayed challenging behaviour at preschool and then at home. It is possible that this challenging behaviour in fact commenced late in 2015. One of the unresolved issues at the hearing was the precise cause in the deterioration of X’s behaviour. One hypothesis, for example, was that X’s behaviour was attributable to his becoming aware of, and indeed regrettably involved in, the parental conflict. In this regard, the evidence created a very strong impression that each parent had inappropriate discussions with X about the issues before the Court. They did so innocently, not seeking to influence him in any way, but completely oblivious to the pressure that this might be putting on such a young child. Another hypothesis is that X’s behaviour deteriorated because he was missing his mother. The evidence clearly demonstrated, for example, that from the last few months of 2015, and for most of 2016, X has been primarily cared for by the Maternal Grandmother, as his mother was working away from her (omitted) home for extended periods of time.
The Final Hearing took place on 8 and 9 September 2016. These Reasons for Judgment explain the Orders that the Court has made, following that hearing. Both parents, and X, were very capably represented by both solicitors and Counsel.
By the time of closing submissions, both the Independent Children’s Lawyer, and the Mother proposed the Minute of Order that is reproduced in the first schedule to these reasons. That order proposed equal shared parental responsibility, that X live with his mother, and that she be permitted to relocate X’s residence, on or after 15 December 2016, to the nominated town on the (omitted). X would spend time with his father on weeks 1, 2 and 3 of a four‑week cycle, with one of those weekends to be in the area where X was living with his mother. In addition, the orders covered school holidays and special days.
By the time of closing submissions, the Father’s proposal continued to be that he opposed X’s relocation, and that X should continue to live in the (omitted) region and spend time with him on a gradually increasing basis. However, and much to the credit of the Father, he indicated to the Court that if it decided that X should be allowed to relocate, he would not oppose the Orders for spends time with in the Minute proposed by the Independent Children’s Lawyer. Indeed, through his Counsel, he advised the Court that he consented to Orders 1 to 3, and if the Court allowed relocation, he would not oppose Orders 5‑9 inclusive, and 11‑21 inclusive. The effect of the very sensible concessions made on behalf of the Father was that the issues that the Court had to decide became limited to:
(1) whether X would be allowed to relocate;
(2) where he should be enrolled to start school in 2017; and
(3) an issue about X’s name.
Indeed, even the third issue was resolved during the course of the hearing when the Father indicated, whilst in cross‑examination, that he consented to X being known as X, this meaning that, for all practical purposes, he also consented to Order 22 of the Independent Children’s Lawyer’s Minute.

The Evidence

In the Father’s case, he relied on affidavits filed by himself on 12 August 2016, and by a friend, Mr C, also filed on that date. Mr C was not required for cross‑examination.
In the Mother’s case, she relied on her affidavits filed 12 August 2016, that of the Maternal Grandmother also filed on that date, and that of her partner, Mr D, also filed on that date. The Mother, the Mother’s partner, the Maternal Grandmother, and the Father were all cross‑examined.
In the Independent Children’s Lawyer’s case, reliance was placed on the Family Report prepared by Dr L dated 24 November 2015, received 17 December 2015, and released on the latter date. Dr L was also cross‑examined.

The Applicable Law

In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1)    The objects of this Part are to ensure that the best interests of children are met by:
(a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)    to maintain a connection with that culture; and
(b)    to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)    to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)    family violence.
(3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)    If:
(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)    the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)    the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)    how far apart the parents live from each other; and
(b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)    the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)   if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)   if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The Cases Summarised

After hearing all the evidence, the Independent Children’s Lawyer summarised the case as follows below. An order for equal shared parental responsibility was inevitable, and was in any event by consent. Both parents agreed that X should continue to live with his mother, and the question was whether his mother should live in the (omitted) region, or in a town on the (omitted) of New South Wales?
The evidence plainly indicated that since the last quarter of 2015, the Mother has in fact been working full time in the town where she wishes to relocate X to, and has lived most of the time there. X has spent a lot of time in that town. However, in reality the Maternal Grandmother has been X’s main day‑to‑day carer.
X’s recent disrupted behaviour was of concern, and was more likely than not to improve, either as a result of the conclusion of the litigation and/or being reunited with his mother.
The Father had, quite properly conceded that he was not in a position to care full time for X and, in any event, it was not in X’s best interests for this to happen. He maintained that he needed the support system that was provided by his family and friends network in the (omitted), and was thus unable to contemplate relocating himself.
The Mother would certainly abide by an order of the Court that she live in the (omitted) region, but it is not her preference. The Mother will marry her present partner who gave evidence that he would both continue to support the Mother and X, even if her employment in the (employer omitted) did not continue, and he would even consider relocating himself to the (omitted) region, if X were not allowed to relocate, though there would be some uncertainties in his own employment in this regard.
The Independent Children’s Lawyer had no concerns about the nature of X’s relationship with his father. In particular, the Independent Children’s Lawyer was not concerned that relocation would have an adverse impact on that relationship. Moreover, the Court, having heard the evidence of both parents, would be satisfied that if relocation were permitted, both parents would do their utmost to make such an arrangement work, from X’s perspective. However, the Independent Children’s Lawyer proposed that any such relocation not take place until the end of 2016 school year.

On balance, the Independent Children’s Lawyer submitted, it was in X’s best interests that he be allowed to relocate with his mother.
On behalf of the Mother, her case was consistent with that presented on behalf of the Independent Children’s Lawyer. While she was very keen to emphasise to the Court that she would abide by any order made, she was concerned about the impact on her future employment prospects, as well as the potential implication on her relationship with her fiancé, should relocation not be permitted. Her case was premised on her willingness to support and encourage X’s relationship with his father, as well as a proven track record in this regard. Her Counsel sought to emphasise that, as a matter of law, she had the right to live and work where she wanted, and the significance of this was accentuated in circumstances where the evidence pointed to no detriment to X if he were allowed to relocate.
The Father’s case focused on his concern that his relationship with X, which was unquestionably good, might suffer as a result of relocation. He was concerned about how X himself would cope with change given that his more recent behavioural issues were indicative of a child who was resistant to change, and to disrupted routines. His case was somewhat critical of the Mother in bringing about significant changes in her life in removing herself as the constant presence in X’s life, in order to focus on her career. He was concerned about the practical issues associated with spending time and communicating with X, given the geographical distance between (omitted), and the town in the (omitted) where it was proposed X and his mother would live.
Whilst it was conceded on his behalf that communication between the parents was not only good, but seems to have improved notwithstanding the litigation, he was concerned that if X was allowed to relocate, his mother’s commitment to continuing to foster X’s relationship with his father might wane, especially as the implications of long‑term travel are felt.
His case emphasised the uncertainties associated with moving X away from a well‑established and familiar support system in the (omitted), to a relatively unknown one on the (omitted), even though his mother and her partner would be there. In essence, his case was that when the advantages and disadvantages from X’s perspective of relocation were all weighed on the balance, there was more benefit to him in remaining in the (omitted).

The Evidence of Dr L

Dr L observed X’s comfortable and relaxed interactions with both his parents. He appeared well attached with both of them. Despite ups and downs, the parents appear to have been able to co‑parent after separation with a considerable level of maturity, support and respect for each other. They were able to collaboratively make arrangements for X that were developmentally appropriate, whilst accommodating their own needs and schedules.
At the time of Dr L’s report (November 2015), she was concerned that the possibilities for conflict between the parents seemed to be increasing rather than abating. At that time, however, the relocation issue had only recently manifested itself and emotions were quite raw. The Court’s strong impression, after hearing all the evidence, is that even within the confines of the litigation, the relationship between the parents is a good one. There is no evidence before the Court of conflict getting in the way of making sound decisions about X other than the matters before the Court.
Dr L was very complimentary of the manner in which each parent had been attentive to preserving X’s relationship with each of them, and seemed to emphasise the continuing importance of this.
Dr L identified the dilemma in this case: that relocation raises the tension of the Mother meeting her own needs by having freedom to start a life on the (omitted) where she has worked for one year with a possible extension, and where her partner lives, against the losses for X that are likely to result from him not being able to spend regular time with his father as is currently the case.
Whilst acknowledging the Mother’s perceptions of the benefits to X and herself of the relocation, Dr L was very much aware of the potential for a significant loss to X in terms of the continuity of his regular time with his father, and the risk that this could ultimately lead to a watering down of that relationship. However, the proposed relocation, which (it was commonly agreed) was a distance of two hours and 40 minutes:
...is likely to seriously diminish the social capital Mr Davidson has to offer X including participating in his extracurricular activities and his school.
Notwithstanding that, the parents had previously demonstrated a capacity to make a significant commitment to ensuring that arrangements for X are put in place and are sustainable.
There was a risk that X might experience some stress and anxiety either because he feels that his father has abandoned him or because he has not had the chance to maintain a relationship with him through regular contact. It was therefore most important to ensure that if relocation was allowed, a workable regular contact regime be implemented.
Dr L’s recommendations are found at paragraphs 54‑59 of her report:
54.It is recommended that the parties work on improving their communication so they can assume joint parental responsibility.
55.It is recommended that whether Ms Marsh is permitted to relocate be determined by the Court.
56.It is recommended that X lives with his mother.
57.It is recommended that X spends with his father preferably at least weekly.
58.If Ms Marsh is permitted to relocate, it is recommended that Mr Davidson consider a transfer with his job and that arrangements be made for the time X spends with him to be incrementally increased to substantial time i.e. four or five evenings per fortnight.
59.If the Court determines that Ms Marsh can relocate and Mr Davidson chooses to remains in (omitted) it would be recommended that X spends alternate weekends with his father in (omitted) and that Mr Davidson spend time at least monthly with X in (omitted).
Dr L was cross‑examined as the last witness in the case. Before giving her evidence, she was given access to all of the more recent documents filed on behalf of the parties, as well as access to the subpoenaed documents. What emerged from cross‑examination is that even though Dr L was concerned about the deterioration in X’s behaviour, she was also encouraged to see the way in which both parents had worked together to respond to this, for example, via the preschool. She could not explain definitively the cause of the deterioration in X’s behaviour. Whilst acknowledging that it was merely speculative, she pointed to the changes in X’s living arrangement once the Mother commenced working away from home, the stress and uncertainty of the litigation, and perhaps even a period of illness that his mother experienced in 2016. She thought it was very much in his interests that the issue before the Court be determined, even at the risk of disenchantment either way.
Given X’s recent behaviour, she emphasised the importance of both parents sensitively managing any changes that the Court might make, by way of reducing his time with his father. She was of the view, however, that the parents did have this capacity.
When pressed about making a recommendation, one way or another, she was clearly hesitant to do so. She acknowledged the difficulty inherent in relocation cases. She was clearly confident about the parents’ capacity to adequately support X, in whatever context, as well as to support the other’s relationship with him. If relocation was to be allowed, it would be important to create opportunities for both X and his father to get together as frequently as possible. She thought that alternating weekends in (omitted), supplemented by monthly visits by the father to the (omitted) would be very beneficial to him. Ideally, opportunities for involvement in X’s school life should be included. She was clearly open to 3 weekends a month, provided they were not all in (omitted). With that level of frequency, she was satisfied that X would maintain his meaningful relationship with his father.
She was concerned about the possible adverse impact on the Mother’s wellbeing if she was forced to return to the (omitted) region, noting that this probably would not help X, nor would it help the Mother’s relationship with her partner.
Dr L thought that if relocation was to be allowed, a good transition time would be at about the time of transition to a new school.
When cross‑examined by Counsel for the Father, Dr L acknowledged that the reduction in X’s time with his father (from the current Sunday, Tuesday and Friday/Saturday) to that proposed (on alternate weekends) would amount to a significant reduction, indeed a great change, and potential loss for X. She agreed that he could be characterised as a vulnerable child, particularly given his recent behavioural issues. She could not rule out the possibility of the behaviour continuing if X were allowed to relocate. Whilst acknowledging, however, that the ideal outcome would be for the parents to live geographically proximate to each other, it was nonetheless important to weigh up the positives, and the negatives of each scenario before the Court.
When asked about the possible explanations for X’s behaviour, to be fair to Dr L, she acknowledged that it was possible that it was attributable to the changes in his life brought about by the Mother, but the Court could not conclude that she was definitive about this. Again, Dr L emphasised that the gains, as well as losses of a relocation need to be carefully considered.
Dr L’s evidence was very balanced, and carefully considered. If it is possible to summarise her evidence in a takeaway idea, that would be that the Court needs to consider both the advantages to X, and the disadvantages to X, of allowing him to relocate with his mother, to a town on the (omitted) of New South Wales. That Dr L believed that there were both advantages, and disadvantage is plainly evident to the Court. Her view, however, was that it was for the Court to decide.

Meaningful Relationship

There is no doubt from the evidence that X enjoys a meaningful relationship with both of his parents. If relocation is not permitted, this meaningful relationship will continue. If relocation is permitted, the Court is satisfied that this meaningful relationship will likewise continue. The frequency of the Father’s time with X, if he is allowed to relocate, satisfies the Court that it is a more than adequate platform for the continuation of the existing meaningful relationship between them. The Court accepts, firstly, that such is the strength of the Father’s relationship with X that merely reconfiguring the frequency and duration of his time with him will not alter the fundamental substratum of that relationship. Secondly, the Court is satisfied that both parents, and not just the Mother, are fundamentally committed to the continuation of that meaningful relationship. The Court can readily understand the Father’s concerns about the change in the physical aspects of his relationship with X that will be brought about as a result of his relocation. The Court can understand his concern that the physical changes may also bring about an emotional change in the nature of X’s relationship with his father. On all the evidence before it, however, the Court cannot foresee the change having that impact.
The Court believes that it should be very cautious before placing too much weight on the Father’s concerns about change because change is something that will occur in any event. X commences school next year. That will place pressure on the existing contact arrangements. Moreover, the very nature of the Father’s work as a (occupation omitted) has practical implications on the nature, frequency, and duration of the Father’s time with him. Even if the after‑school contact could be sustained, if X were not permitted to relocate with his mother, the fact is that as X gets older and progresses through developmental stages, the chances of a change from the existing arrangement increase significantly.
The Court recognises the warnings articulated by Dr L in her Family Report, but even Dr L acknowledged the suitability of the spend time with and communication proposals advanced should relocation be permitted. There was clearly a recognition that a meaningful relationship could be sustained.
On balance, the Court believes that whether relocation is allowed or is not allowed, X will enjoy a meaningful relationship with both of his parents.

Protecting X From the Risk of Harm

There are no such issues in this case. Whilst he has been demonstrating signs of disturbed behaviour during the course of the proceedings, and whilst at least on one hypothesis this has been caused or contributed to by the parental conflict associated with this litigation, the fact is that when this case is viewed objectively, it is a relatively benign level of parental conflict. Thus, not even the parental conflict presents a risk of harm to X.

Any Views Expressed by X

This consideration is not informative on the facts of this case. Even if X were said to have expressed a view, given his age and maturity, the Court would not be prepared to place reliance on it.

X's Relationships with His Parents and Other Significant People

There is no need to repeat what has already been said above in relation to X’s relationships with his parents. What is clear from the evidence is that X also enjoys a good relationship with the Maternal Grandmother, as well as the Mother’s partner. A relocation takes X away from his maternal grandmother, but closer to his mother, and her partner. The Court is confident from the Maternal Grandmother’s evidence that she will do the best she can to continue this relationship with X.

Parental Participation in Decision‑Making, Spending Time and Communicating with X

Each parent has behaved in an exemplary fashion when it comes to X spending time with his father. As the Family Consultant observed in her report, they have remained very much child‑focused, whilst accommodating their own respective personal needs, particularly surrounding their work commitments.
The Father expressed a concern about some unilateral decision‑making by the Mother, for example, the use of the surname Davidson‑Marsh, booking X into a preschool in the town where the Mother proposes he relocate whilst he was on holidays there, and deciding that she would (in effect) relocate to that town, whether or not the Father consented, and irrespective of any impact on X. The Mother also applied to enrol X in a school without reference to the Father. There is some substance to the Father’s concerns in this regard. There does appear to be some reasonable basis for the concern that the Father expressed to Dr L that he felt sidelined at times, in relation to decisions about X. The significance of this consideration is mitigated, somewhat, by other matters. For example, the Mother ultimately proposed that X become known as X, something that the Father accepted. Whilst she did, in effect, relocate herself, the Mother genuinely believed that this was an economic necessity for both X and herself, and put in place an alternate care arrangement by way of the Maternal Grandmother that was adequate under the circumstances, and ensured that X’s time with his father remained unchanged. In any event, and despite the Father’s concerns, he proposed equal shared parental responsibility, and that X live with his mother. Ultimately, this reflects a confidence in her abilities, character, and attributes, as well as an acknowledgement that he was not (for perfectly good reasons) a viable alternative primary carer for X.

Maintaining the Child

Both parents have behaved in an exemplary fashion in this regard. The Father pays regular child support as assessed. He provides tangible assistance above that. The Mother’s move is motivated, at least to a substantial part, by the desire to economically provide better for X and herself.

The Likely Effect of Change in X's Circumstances

The impact of change on X was considered extensively by Dr L in her Family Report, as well as in her cross‑examination. As Counsel for the Father pointed out both in cross‑examination and in closing submissions, there is a big difference for X between seeing his father three times each week (the current arrangement) to seeing his father three weekends each month (as contemplated in the Independent Children’s Lawyer’s minute). This change is undeniable. It is a dramatic reduction in the frequency of contact. But the change is taking place to coincide with a major milestone for X and a time of significant change in his life – commencing school. The likely effect of change, therefore, must be understood in that context. Moreover, frequency is exchanged for duration so that X is able to spend much more time with his father, albeit less frequently. Importantly, as he starts his new life at school, he will be able to share that experience with his father at the end of school on Fridays, for 3 Fridays out of four. He will be able to spend more night‑times and mornings with his father. He will be able to spend time with his father in the (omitted), as well as in his new community on the (omitted) should the Court so allow. He will have school holiday time with his father, something that is not presently contemplated in the existing interim orders. Thus, there is clearly change but the Court does not believe, on the evidence before it, that it is change that will have an adverse effect on X’s relationship with his father.
Is it likely, in the short term, that X will experience some disruption and anxiety as a result of these changes? It seemed a common theme in both parents’ case, and the Independent Children’s Lawyer’s case, that this is probably so. The focus, however, is on the likely effect of this on X, and here attention is focused on both parents and the very admirable and united way in which they have been dealing with his current behavioural problems. X’s parents both love him very much. If he shows signs of anxiety as a result of the changes in his life that are inevitable if he is allowed to relocate with his mother, the Court is entirely satisfied that both would manage this in an appropriate, and positive fashion.

Issues of Practical Difficulty and Expense

The Court accepts that the Mother’s proposed relocation creates a significant practical difficulty for X, in order to spend time with his father. It is common ground that the one‑way travel from the Father’s residence to the town where the Mother wishes to relocate is 2 hours and 40 minutes. The travel time for the parents, as well as X, is relevant, but the financial burden is also a consideration.
The proposed orders seek to mitigate some of these concerns. Whilst it is true that X will have to endure all the travel, at least the parents share this responsibility. Moreover, the Court heard evidence from both the Mother and her partner about how X copes with the existing travel, and it seems not to be an issue for him.
The Court openly acknowledges that in some cases travel for children can be exceedingly onerous. This is particularly the case when a child is not merely travelling from one physical space to another, but from one psychological space to another, where the territory to be crossed is akin to the no‑man’s‑land in a battlefield. That is not the case for X. He moves from one loving, supportive home environment, to another loving, supportive home environment. X’s time with his parent starts from the moment he gets in the car with them, i.e., at the beginning of the journey, not at the end of the journey when they get to their destination. Both parents have impressed the Court by their child focus, and the Court is confident that should relocation be permitted, they each have the capacity and desire to make X’s travel experiences as least onerous for him as possible.

An exceptional feature of this case, again manifesting the good intentions, and good relationships that exist between the parents, is proposed order 9. This order means that the Mother will pay the Father’s reasonable accommodation costs for one night’s accommodation in the town where the Mother wishes to relocate, thus mitigating any economic burden on the Father. The Mother’s proposal in this regard seems to be genuinely motivated, rather than some cynical attempt to win the Court’s favour. It is an obligation that the Mother took upon herself in circumstances where she must have been advised it would be unlikely that the Court would impose it on her.

Issue of Parental Capacity, and Attitudes to the Child and to the Responsibilities of Parenthood

The Court prefers to deal with these two considerations together.
There is nothing in the evidence to suggest that either parent lacks the capacity to provide for X’s physical, emotional, or intellectual needs.
The Court acknowledges that there was evidence which suggested some attitudinal deficits on the Mother’s part, but these are hardly of seismic proportions and, in many ways, it is regrettable that these matters need to be recorded in a judgment in a case where X is otherwise very fortunate to have the parents he has.
In the post‑separation period, it is possible that the Mother acted in a somewhat arbitrary fashion at times in relation to X spending time with his father. There is no evidence of this from 2015 onwards.
The Mother’s decision to relocate seems to have been made over the Father’s objection. Indeed, but for the intervention of this Court, the Mother would have relocated. Moreover, she seemed quite surprised when the Court prevented her from doing so at an interim hearing.
Even when she knew that the Father opposed X’s relocation, and that the focal point of the litigation would become relocation, she nonetheless chose to, in effect, relocate herself. In so doing, she either knew, or should have known, that this was going to have both physical (in terms of travel) and emotional (in terms of X potentially missing his mother) impacts.
Nonetheless, the Court must try to understand this from her perspective before being too critical of her. The Court accepts that she was genuinely motivated by the desire to improve her life and X’s life. She saw the opportunity to exchange the uncertainty of casual work during the (omitted) as a (occupation omitted) for the greater certainty of contract work for a (employer omitted), for the even greater certainty of a one year contract. Her anticipation that this might lead to more permanent work is an untested one. Notwithstanding that, her motives appear genuine. Financial security for her means financial security for X. The Court does not find the Mother to be a woman who was obsessed with her career to the exclusion of her son. That finding is not possible on the evidence. The Mother made it very clear that if X were not allowed to relocate, she would return to the (omitted).
Moreover, the alternative care arrangements that the Mother put in place for X, whilst she was working, were adequate for him. The Maternal Grandmother’s parenting capacity was beyond question. At no stage did the Father present a viable alternative, something which he himself acknowledged in his case.
Most of the burden of travel midweek was borne by the Mother, not X. It was she who travelled very long distances in order to be there for X at bedtimes (albeit not every night).
The Mother ensured that just because she relocated herself, that this would have no impact on X’s existing spends time with arrangement with his father.
When X started to manifest behavioural problems, the Mother did all that she could (short of breaking her contract and returning to the (omitted)) to properly respond to and address those behavioural problems.
The Court accepts that the Mother fell in love with Mr D, and their relationship blossomed. The fact that he lived in the area where the Mother was (employment omitted) was incidental to and not the main reason for, the Mother seeking to relocate. In any event, even the Father in this case expresses no concerns about Mr D’s involvement in X’s life.
The Court openly acknowledges that during the course of the hearing, at times, it had formed the hypothesis that the Mother was preferencing her own personal needs over that of X. Once the evidence is considered in its totality, however, the Court does not accept that to be the case. The Court finds that she was, at all relevant times, genuinely motivated by what was in X’s best interests, but unsurprisingly, that was very much linked to her own wellbeing and happiness, both emotionally and financially.
The Court again openly acknowledges that, at times, it was concerned that the Mother had sought to mislead the Court by not disclosing the fact that since the last quarter of 2015 she had, in fact, relocated to the (omitted). Her explanation, however, that she did not think it was relevant because of the alternate arrangements she had put in place for X’s care, and the uninterrupted contact with his father, is plausible.
In all the circumstances of this case, there are no parental attitudes manifested by either of X’s parents which caused the Court any concern. He is, indeed, very fortunate to have the parents he has.

Matters of Maturity, Lifestyle, Background

X’s parents presented to the Court as being very different. This is a good thing for him, rather than a disadvantage. The Father’s evidence suggested the enjoyment they both take out of doing physical things. The Mother’s evidence suggested that her interaction with X certainly includes that, but also has an intellectual dimension which is unsurprising given her chosen profession as a (occupation omitted). Whether X is living in (omitted), or on the (omitted), he will enjoy all of the lifestyle benefits of living in New South Wales (omitted) communities.

Family Violence

There are no such issues in this case.

Orders in the Best Interests of X?

This is a finely balanced case. The Independent Children’s Lawyer certainly acknowledged that. Dr L would not, one supposes for this very reason, be drawn into a firm recommendation. She could see both advantages and disadvantages of X being allowed to relocate. In circumstances where the Father agrees that X should live with his mother, this Court does not believe that, in this case, it should prevent her from doing what she, in good faith, believes to be best for both X and herself. There will be emotional, physical, and financial benefits to X if he is allowed to relocate with his mother. She will be happier, not just because she is closer to work, but she is closer to her partner and future husband, and will be much more available for X - one of the fringe benefits of being a (occupation omitted). Moreover, she remains committed, the Court accepts, to fostering X’s relationship with his father. It is true that relocation will bring about changes in X’s life but the Court believes that some of these will be beneficial, and to the extent that the changes have an impact on how often he spends time with his father, the proposed orders adequately address that, and provide a very firm foundation for X’s existing good relationship with his father to not only continue, but grow, as he progresses through his developmental stages. On balance, therefore, the Court finds that relocation is in X’s best interests.

Parental Responsibility, and its Statutory Consequences

The parents have agreed to equal shared parental responsibility. The Court must, therefore, consider equal time, or substantial and significant time. The time arrangements between X and his father, have largely been agreed to between the parents, even if it was not the Father’s preference that X be allowed to relocate with his mother. In any event, the Court finds that equal time is not reasonably practicable having regard to the geographical issues in this case. However, the order proposed is an order for substantial and significant time, which the Court believes to be both in X’s best interests, and reasonably practicable in all the circumstances of the case.

X's Schooling

The only issue remaining for determination by the Court is where X should attend school. The Mother proposes that she be allowed, at her expense, to enrol X in a (omitted) primary school in the town in which she seeks to relocate. She has a preference for the (omitted) school system, and teachers in that system. The Father made no specific proposal about which school X should attend, whether he be allowed to relocate or not. His objection was to the (omitted) school system on the basis that it would, in time, predispose X to a certain view about religion which might not occur in the state school system.
Both parents are genuine in the views that they hold. The Court does not necessarily accept the Father’s premise which, at least impliedly, contends that a (omitted) education predisposes a child to adherence to the (omitted) faith. Nor does the Court necessarily accept the corollary of the Father’s premise, i.e. that a state school education predisposes a child to make their own choice about religious matters. Ultimately, the decision about X’s school is made on more pragmatic grounds. The fact is that X will be living on the (omitted) of New South Wales with his mother, who works in the (employment omitted) and who will be primarily responsible not just for his care, but by virtue of her own proposed order for the costs of such education. In the circumstances, this is more beneficial to X than any unknown alternative. Clearly, for example, the Mother had made inquiries at the school and was satisfied that it was appropriate for her. As a (occupation omitted), the Court would reasonably expect that she would satisfy herself about the suitability of the school for X. In the circumstances, and having regard to all of the evidence in this case, the Court prefers the proposal advanced by the mother and supported by the Independent Children’s Lawyer.

Orders

The orders will be largely consistent with the Independent Children’s Lawyer’s minute, supported by the Father as to some matters. There is some detail that is noticeably absent about the details of school holidays and special days, but these will be derived from the detailed proposals that each parent made. The Court believes that these Orders are in the best interests of X.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 2 November 2016

Schedule 1

Minute of Order Proposed by the Mother and the Independent Children’s Lawyer

That all previous parenting Orders be discharged.
That the mother and father have equal shared parental responsibility for the child X (born (omitted) 2011) in relation to the care, welfare and development of a long-term nature involving the child to include, but not be limited to, issues about:-
(a)the education of the child – both current and future;
(b)the religion of the child;
(c)the health of the child;
(d)any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.
That the child lives with the mother.

That, on or after 15 December 2016, the mother be permitted to relocate the child’s residence to (omitted).
That the child spends time with the father, subject to the special occasion arrangements as set out in Orders 7 and 8 below, as follows:-
(a)During school term, in a four week cycle as follows:-
(i) In Weeks 1 and 3, from the end of school (or 3pm on a non-school day) Friday until 3:30pm Sunday (with the father to collect the child from school or from the mother’s home on non-school days, and with the mother to collect the child from the father’s home at the end of the visit);
(ii) In Week 2, from the end of school Friday (or 3pm on a non-school day) until 4pm Saturday, with such time to occur in the (omitted) area (and in the event that the father is able to stay for the entire weekend, the time is extended until 4pm Sunday) (with the father to collect the child from school or from the mother’s home on non-school days, and with the father to return the child to the mother’s home at the end of the visit);
(iii) The four week cycle is to be suspended during school holiday periods and is to resume at Week 1 in the first week of the new school term;
(b)Short school holidays – half each (in event of uneven number of nights, child to spend additional night with father)
(c)Christmas school holidays – F proposing 2 x 1 week blocks plus additional time (?extended long weekend) at start / end of holidays – ICL would support this
(d)The mother is to deliver the child to and collect the child from the father’s home at the start and end of all school holiday periods..
(e)At such other times as are agreed to between the parents.

Special occasions – father

Special occasions – mother
That the child have liberal communication with both parents and other significant people by telephone, Skype and any other agreed form of communication.
That, for the purposes of Order 5(a)(ii), the mother shall pay reasonable accommodation costs for one (1) night’s accommodation for the father and the child, with the father to provide the mother with one (1) weeks’ notice of any booking he has made.

10. That the mother is permitted to enrol the child at (omitted) Primary School in (omitted), conditional upon the mother being responsible for the payment of any school fees and other costs associated, unless otherwise agreed to between the parents.

11. That both parents are to refrain from making critical or derogatory remarks about each other or members of each other’s families in the presence or within the hearing of the child; and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their families in the presence or within the hearing of the child.

12. That both parents will ensure that the other parent is kept informed of:-

(a)any serious medical problems or illnesses suffered by the child, with the other parent to be notified as soon as possible;
(b)any medical emergencies involving the child, with the other parent to be notified immediately;
(c)any medication that has been prescribed for the child that needs to be taken during the time the child is with the other parent, with the other parent to be notified at the time of changeover;
(d)any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);
(e)any social, school or religious functions which the child is involved in or invited to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;
(f)the telephone contact number and residential address of the parent, with any changes to be advised within twenty-four (24) hours;
(g)any other matter relevant to the welfare of the child, with the other parent to be notified as soon as is reasonably practicable.

13. That each parent will provide to the other parent full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the child.

14. That each parent is permitted to liaise directly with the child’s pre-school(s), school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about the child’s progress and that each parent will authorise the pre-school(s), school(s), sporting bodies and/or other organisations to facilitate this.

15. That each parent will provide the necessary authorities to the Principal of the child’s school(s) to ensure that the school forwards to both parents copies of the child’s school reports as they fall due along with copies of all school circulars, newsletters, school photo order forms and invitations to any school activities which parents are invited to attend.

16. That, for the purposes of parental communication regarding long-term decision-making, the following communication plan is to be implemented, unless as otherwise agreed to between the parents:-

(a)The parent who wishes to raise the issue must do so in writing, preferably by email;
(b)The other parent must respond within fourteen (14) days;
(c)The instigating parent must reply to that response within fourteen (14) days;
(d)Further direct negotiations are to occur within the following fourteen (14) days;
(e)In the event no agreement is reached within the forty-two (42) day period (unless it is otherwise mutually agreed to in writing between the parents to extend this time) both parents must make contact with Relationships Australia in (omitted) and thereafter do all acts and things as are necessary to arrange for an urgent family dispute resolution (mediation) session with a view to resolving the issue in dispute.

17. That each parent is restrained from involving the child in the parental communication (including but not limited to asking the child to pass messages to the other parent).

18. That both parents and member of their respective families are entitled to attend all events involving the child including, but not limited to:-

(a)sporting fixtures;
(b)extracurricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation
AND the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless as otherwise agreed to between the parents.

19. That in the event either parent intends to travel with the child for a holiday out of the State of New South Wales, they are to advise the other parent no later than seven (7) days prior to the intended departure date, with such advice to include departure and return dates, general holiday location information and emergency contact details.

20. That each parent is restrained from removing the child from the Commonwealth of Australia without the consent of the other parent. In the event such consent is provided, the parent with whom the child travels overseas with will provide to the other parent full travel particulars in writing, at least twenty-eight (28) days prior to the date of departure, including but not limited to an itinerary, accommodation details and emergency contact numbers.

21. That each parent will follow any recommendation made by Ms M (and/or other staff from (omitted)) and Ms K (and/or other staff from the (omitted) daycare centre regarding any therapeutic interventions necessary (including counselling or psychological support, paediatric assessment, speech pathology) to support the child in his transition to school in 2017 and his move to (omitted).

22. That, by consent, the child henceforth shall be known as X and for the purposes of this change of name:-

(a)That the mother is authorised to apply to the Registrar Births, Deaths and Marriages of NSW so that the child registered as X (born (omitted) 2011) now be registered as X (born (omitted) 2011), noting that Marsh will be a middle name;
(b)Pursuant to Sections 28(3) and 28(5) of the Births, Deaths and Marriages Act NSW 1995, the Registrar register the child's name in the form specified in Order 22(a) herein;

(c)The mother shall take all reasonable steps to serve a sealed copy of these Orders upon Registrar Births, Deaths and Marriages of NSW within 28 days of receipt of a sealed copy of these Orders;
(d)The mother shall be responsible for all costs associated with this change of name, including the production of a new birth certificate for the child.

[2016] FCCA 2428

2 November 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent