MARSHALL & MORRIS

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARSHALL & MORRIS

[2015] FCCA 611

Catchwords:
FAMILY LAW – Parenting – relocation – two good parents – mother seeks to relocate from Darwin to (omitted) South Australia with six year old son – mother suffers from anxiety and panic attacks – father cannot move – mother cannot stay.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60B(1)(2), 65D, 60CC(2)(3), 61DA(1), 65DAA(1)(2)(3)

Waterford & Waterford [2013] FamCA 33
Mazorski & Albright [2007] Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR & GR [2010] HCA 4
Taylor & Barker (2007) 37 Fam LR 461
U v U (2002) 211 CLR 238; (2002) FLC 93-112
KB & TC (2005) FLC 93-224
AMS & AIF (1999) 24 Fam LR 756
Tellam & Calhoon [2013] FMCAfam 264

Applicant:

MS MARSHALL

Respondent:

MR MORRIS

File Number:

DNC 268 of 2011

Judgment of:

Judge Harland

Hearing dates:

25, 26 & 27 February 2015

Date of Last Submission:

27 February 2015

Delivered at:

Melbourne

Delivered on:

24 March 2015

REPRESENTATION

Counsel for the Applicant:

Ms Basheer

Solicitors for the Applicant:

Ward Keller Lawyers

The Respondent appeared in person

IT IS ORDERED

That the child X (“the child”), born (omitted) 2009 live with the father.

ORDERS BY CONSENT

Parental responsibility

That the parents shall have equal shared parental responsibility for the child.
That the parents are required to make all decisions about major

long-term issues in relation to the child jointly.
That the parents are not required to consult the other when making decisions while the child is in their care under the order about issues that are not major long-term issues.

Changeover

The mother is to deliver the child to Adelaide Airport at the commencement of the father’s time, and the father is to deliver the child to the mother at Darwin Airport at the conclusion of his time.

Communication

IT IS NOTED that it is the intention of the parties that the time for communication will be the time zone of the child or as negotiated and consented to by both parties.

The child shall have telephone and Skype, video and/or Facetime contact with the parent whom they are not living with at all times as agreed, but failing agreement Monday, Wednesday and Friday at 8:00pm.
The child shall have Skype, video and/or Facetime contact with the parent whom they are not living with on Christmas Day, the child’s birthday, the parent’s birthday, Father’s Day and Mother’s Day at all times as agreed, but failing agreement at 9.00am.
The child shall have telephone and Skype, video and/or Facetime contact with any member of the father’s extended family Sunday from 6:00pm to 7:00pm.
If the mother is not permitted to relocate and the child is living primarily with the father, the child shall have telephone and Skype, video and/or Facetime contact with any member of the mother’s extended family Sunday from 6:00pm to 7:00pm.

Holidays

That the parents be permitted to travel interstate and overseas with the child during their school holiday time provided that:
(a)for all interstate travel, the travelling parent provides an itinerary and details of places they will be staying to the non-travelling parent no less than 28 days prior to travel;
(b)
the travelling parent provides a proposed itinerary to the

non-travelling parent no less than 42 days prior to travel, and that the non-travelling parent consents in writing to such travel within

7 days of receiving the proposed itinerary, noting that consent shall not be unreasonably withheld. The travelling parent shall provide a firm itinerary to the non-travelling parent no less than 28 days prior to travel; and
(c)
the travelling parent shall provide contact details for the

non-travelling parent to have contact with the child whilst they are on holidays, and that the travelling parent shall facilitate telephone and/or Skype contact with the non-travelling parent as requested by the child, as well as at 6:00pm each evening.
That both parents sign all documents in order for the child to obtain and/or renew Australian passports.

Parental obligations

Each parent is hereby authorised to obtain from the child’s school/s notices, letters, school reports and other information in relation to the child’s education.
Each parent will do all such things as may be necessary and sign all documents necessary to conduct parent/teacher interviews by Skype and/or video or other form of electronic conferencing, where possible.
Each parent is hereby authorised to obtain any information and reports from any medical practitioner, health professional or dental practitioner involved in treating the child, so far as the practitioners can provide at law.
That each parent notify the other immediately by telephone or SMS of any significant illness or medical emergency involving the child including hospitalisation of the child and in the event of hospitalisation, each parent is at liberty to attend at the hospital into which the child has been admitted.
That each parent notify the other of their current residential address, email and telephone number within 48 hours of the making of these Orders, and shall notify the other parent of any changes within

48 hours of such a change occurring.
That the parties are each restrained and an injunction is granted restraining each of them from criticising and/or denigrating the other parent in the presence of, or in the near vicinity of the child and/or allowing any other person to do so.

Living and spend time with arrangements

That the child live with the father and spend time with the mother in

(omitted) as agreed between the parties and for no less than ten (10) weeks each year, but failing agreement, as follows:
(a)for the entire gazetted Northern Territory school holidays at the conclusion of Terms 1, 2 and 3;
(b)for four (4) weeks during the gazetted Northern Territory school holidays at the conclusion of Term 4, being the first four (4) weeks in all odd-numbered years and the last four (4) weeks in all even numbered years; and
(c)for special occasions such as weddings and milestone birthdays, provided the mother gives the father no less than 28 days’ notice of any such event.
The mother shall spend time with the child at any time which she travels to Darwin, provided she gives the father no less than 14 days’ notice of her intended travel.
For the purposes of Orders 17(a) and 17(b) herein, the father will book and pay for the child’s airfare to Adelaide, and the mother will book and pay for the child’s airfare to Darwin.
For the purposes of Order 17(c), the mother will book and pay for the child’s flights to and from Adelaide.

Notations (made by consent)

A.That the parties will each use their best endeavours to positively promote and facilitate the child’s relationship with the other parent;
B.That the parties will encourage the child to refer to the Applicant’s mother’s partner as “Mr R”;
C.That the parties will encourage the child to refer to the Respondent father’s partner as “Ms P”;
D.That it is the intention of the parties that the parent with whom the child is not living with be at liberty to read the child a bedtime story during the Skype, video and/or Facetime communication periods set out in Order 14 herein; and
E.Each parent will use their best endeavours to obtain and provide to the other photos, videos and other memorabilia from the child’s sporting and extra-curricular activities, and will provide the other parent with notice of such events so that they may attend.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 268 of 2011

MS MARSHALL

Applicant

And

MR MORRIS

Respondent

REASONS FOR JUDGMENT

X is 6 years old. Unfortunately his birthday fell on the second day of the hearing. The hearing had previously been rescheduled from January 2015 due to a family crisis in the father’s family. The hearing did finish early that day so his parents could celebrate his birthday. The parties’ good communication is demonstrated by the fact that the parents chatted about X’s birthday party during a court break.
The mother wants to relocate with X from Darwin to (omitted) in South Australia. The father wants X to remain living in Darwin. This is a difficult case for both parents. They both love X dearly. They both genuinely believe that the outcome they seek is in X’s best interests. They both acknowledge the other’s good parenting skills and the importance of X maintaining a meaningful relationship with both of them. They also acknowledge that ideally they would be living in the same city but currently that is not possible.
The mother has re-partnered with Mr R (Mr R). She wants to move to (omitted) to be with him. They are engaged to be married.
X’s parents separated when he was a baby. To their credit they have been able to negotiate parenting arrangements for X until now.
Relocation cases are very difficult to settle and it is not a criticism of the parties that they have not been able to do so. They have been able to agree on several issues including equal shared parental responsibility and holiday arrangements for the parent who does not have primary care of X. This is to their credit.
Communication between the parents has deteriorated during the proceedings. That is understandable.
As the parties have agreed on most issues, what I have to decide is:
(a)should X remain living in Darwin, which will mean living primarily with his father; or
(b)should X move to (omitted) with his mother.

The mother’s case

The mother says that she has always been X’s primary carer. She says that although it is a very difficult decision, she has decided that if she is not allowed to relocate with X, she will leave X in the father’s care and relocate on her own. She says that she is sad and anxious and feels trapped in Darwin. She is under financial pressure and being apart from Mr R has taken its toll on her. She has sought psychological assistance from Ms D who is a witness in her case.
The mother and Mr R initially conducted a long distance relationship. The costs of travel between (omitted) and Darwin was a burden for them. This will be a real issue for the parties as it seems inevitable that X’s parents will be living in different cities. The parties have, however, agreed on travel arrangements during school holidays and have agreed to share the costs.
The mother’s partner Mr R moved to Darwin but was unable to find work in his field. He is an (occupation omitted) but could not get work in Darwin because he does not have an ‘(omitted)’. He took up a job opportunity with (employer omitted) which involved a pay rise and promotional opportunities.
The mother says that discussions with the father about her proposed relocation were positive. She and Mr R bought a block of land in

(omitted). She acknowledges that it was premature.
At the time of the family report interview, the mother had not decided that she would not stay in Darwin regardless of the outcome.
In paragraph 47 of the mother’s first affidavit, the mother says that X “is of a reasonable age and maturity to cope with the move and to adapt to less frequent, but longer periods of time living with Mr Morris and his half-sister”. I do not agree with this assessment. X has only just turned 6. He does not have the cognitive capacity to understand what the move will mean for him.
The mother says that X speaks to Mr R by video for 15 or 20 minutes each evening. She proposes that the father read X a story each night via video.
The mother says that X is close to Mr R’s family and will benefit from frequent interaction with them if he lives in (omitted).
There are no direct flights between Darwin and (omitted). It is a three and a half hour flight from Darwin to Adelaide. It is then a three and a half hour drive to (omitted). There is also a regional flight from Adelaide to (omitted).

Ms D

Ms D is the mother’s treating psychologist. Ms D records that the mother has an ‘unsettled childhood’. Her father is an alcoholic and she witnessed a serious family violence episode which led to her parents separating. The mother developed anxiety and panic disorder in her teenage years which was untreated.
The mother was prescribed Zoloft in 2008 to treat generalised anxiety and was prescribed it again in 2014. The mother says her symptoms have improved since taking Zoloft but she does not want to be reliant on medication long term.
Ms D records that there is a family history of anxiety and depression which suggests a genetic vulnerability.
Ms D says that the mother’s symptoms may resolve in the short term if she is able to relocate with X. If she is not able to “it is possible that her symptoms may well increase in intensity leading to a greater dysfunctional disorder.”
In the last paragraph of her report, Ms D talks about attachment and the impact of mental illness of the mother’s emotional availability to X, and the impact on children of parents with mental health generally. I place no weight on this.
Ms D was cross-examined. Unfortunately she sought to give evidence outside her brief. She has never met X or the father. Ms D sought to talk about attachment despite being well aware as she said herself she would be encroaching on the family consultant’s evidence, who unlike Ms D, assessed the whole family. Her attitude is not helpful and has the potential to detract from her evidence as she could be seen as seeking to become an advocate for her patient’s cause.
Ms D last saw the mother in December 2014. The hearing was due to take place in January 2015. Ms D recommends that the mother continue to receive treatment regardless of the outcome of this case.
Ms D said that the mother’s symptoms may resolve if she is able to move with X. However, she acknowledged that she cannot be certain about this.
It is clear that anxiety and depression is a recurring issue for the mother, as it is for many people. The mother has appropriately sought treatment as she has in the past. There is no reason to think that she will not do so in the future.

Dr G

Dr G, the mother’s General Practitioner, was cross-examined about the mother’s medication. The mother currently takes 75mg of Zoloft a day. The mother has not reported any side effects associated with it.
Her medication is reviewed regularly and once this situation is resolved, the mother plans to gradually stop taking Zoloft. Dr G said this is normally done by reducing the dosage by 25mg per month. The mother has successfully stopped taking Zoloft in the past.
Even if the mother remains on Zoloft this is not a cause for concern. Many people are assisted by anti-depressant medication and function normally.

The father’s case

The father has an older child Y born on (omitted) 2001. Since January 2014, she commenced living with her parents on a week about basis. She lives with her father during the time X is with his father.
The father has re-partnered with Ms P. They have been living together since February 2013. They hope to have a child together.
The father works as a (occupation omitted) with the (employer omitted). He has to do some travelling for (employer omitted) but has arranged with his employer not to travel when he has the children in his care. The travel ranges from one to four nights a month depending on the length of a (duties omitted).
The father is not assigned to a particular (employer omitted) but works in a pool of (employer omitted). He has spoken to his supervisor and he does not have to go on (duties omitted). There are other (employees omitted) who want to go on (duties omitted). I accept the father’s evidence about this.
The father’s partner works from home. She is able to assist the father to care for X. She was not required for cross-examination.
The father represented himself at the hearing. He has benefited from his experience in (duties omitted). He was well prepared and respectful. The mother was well represented by her legal team.

Father’s time with X

Since early 2014, X has spent five nights a fortnight with the father from Wednesdays to Sundays. This coincides with the week Y lives with the father.
The father says the mother raised her proposed relocation with him on 3 October 2013. He says he told the mother that he was leaning towards saying yes but needed to think about it. He is sympathetic towards the mother and her reasons for wanting to move. The mother concedes that initially she told the father that the move was to be for three years. The mother also conceded that she did not tell the father explicitly that she now wants to relocate permanently.
The father listed several reasons for not supporting X’s relocation. This included his young age, X and Y’s relationship, being excluded from major decisions and the travel between Darwin and (omitted).
The father is concerned that since the mother re-partnered with Mr R, he has been excluded from some decisions. He does not think this is deliberate but he is concerned that this will continue if X relocates. The father refers to X’s enrolment at school, I note X was not enrolled at school rather enquiries were made about this, and sending X to Brisbane in August 2013 as examples of this.
The father also complains that the mother does not tell him about important events for X. He did not cross-examine the mother about this. My impression is that the father feels threatened about his role as X’s father and interprets things in this light.

Whatever the outcome of this case, X will have to make major adjustments. X turned 6 on (omitted) 2015. His parents separated when he was a baby. His only memory is of living with his mother and spending substantial and significant time with his father. Apart from holidays, he is used to seeing both his parents frequently.
X is in Grade 1. Last year he struggled with Reception in some areas, especially in reading. His mother’s proposal includes that his father reads a story to X each night via video or Skype. The father has adopted this proposal in the reverse.
The mother and Mr R were keen to emphasise how good X is at holding conversations over Skype. The father says that X is not always interested in the conversations. The mother says it is up to the parent to lead the conversation and engage the child. When pressed, the mother agreed that Skype cannot replace physical contact.
The father’s point is that he will not be able to maintain the same quality of his relationship he has with X now. He will not be able to go to the park with him, play games with him.
Understandably, the mother emphasises the positive aspects of Skype because she is keen to be able to relocate with X. I also accept that she is genuine when she talks about the importance of X’s relationship with his father, his sister Y and the paternal grandparents.
X does have experience in using Skype regularly as he talks with Mr R each night when he is with his mother. He also talks to Mr R’s parents and the maternal grandmother who lives in Brisbane.
X is a happy engaging boy who is well loved by the many adults in his life.
He is also a little boy under stress. He is aware of the dispute between his parents. He knows his mother wants him to join Mr R and her in (omitted). It is unfortunate that he is aware of that. His mother told him that they were moving after the father indicated that he was considering the move favourably. Since then, X has asked when they are moving. The mother told him that it is inappropriate to talk about it and that some people are making the decision. As a result, X tells his father that he is not allowed to talk about (omitted) and the mother and Mr R’s wedding. The parties need to remember that X is only 6 and he does not have the cognitive understanding of older children and adults.

X does not understand what the move will mean. Visiting for holidays is very different to moving there permanently.
The adults could have handled it better but they are human. I am satisfied that there is no malice involved. It is a stressful situation for everyone. The father is fearful of losing his son and because of this, he interprets things with that in mind. The issue involving a pug dog for X is another example of this. X saw a pug on TV and told Mr R he wanted one. X kept raising it. Eventually Mr R said “one day mate”. X has interpreted this as a promise to buy him one and regularly raises this. The father sees this as an attempt to bribe X into favouring the relocation. I think it is more likely to reflect Mr R’s relative inexperience with children.

The mother’s reasons for relocation

The mother has been conducting her relationship with Mr R by long distance. She and Mr R have found this difficult financially. They have also found it emotionally draining.
Mr R moved to Darwin for approximately six months. He has qualifications and experience working as an (occupation omitted). He says he was unable to find employment in Darwin at a similar income because he does not have his (omitted) qualification as an (occupation omitted).
The father put it to Mr R that he did not seriously look for work in the Northern Territory. Exhibit E is a bundle of job applications and rejections. Mr R conceded that he did not have the qualifications for some of the positions. Mr R said (omitted) qualifications was a desirable criteria for some of the positions.
In order to obtain his ‘(omitted)’ qualification in Darwin, he would have to undertake an apprenticeship at a wage of approximately $30,000. He earns approximately $80,000 at (employer omitted).
The mother says that Darwin is expensive and that she is under financial strain as she is working casually. The father did not challenge the mother’s evidence that she struggled at her former job because of her mental health and resigned after her employer started performance managing her. She soon found casual employment which she found less stressful. She and her partner will have fewer expenses once she moves to (omitted) because they will no longer be running two households and the rent in (omitted) is cheaper.
The mother says she is confident that she will find work in (omitted). She plans to work during school hours. She says this means X will not have to go to before and after school care.
Mr R returned to (omitted) in late 2013. His former employer offered him a job. He says his employer told him he needs to stay for a couple of years. His employer has provided him with training and promotional opportunities. He has already completed one course. His employer is also looking at upgrading the qualifications of (occupation omitted) to obtain their (omitted) qualifications to be qualified (occupation omitted). Mr R explained that historically (occupation omitted) jobs were separate to (occupation omitted) but now they overlap much more.
I am satisfied that Mr R did make genuine attempts to find work in and around Darwin. He returned to (omitted) to take up a very good job offer in (omitted) that will see his advancement. I am also satisfied that if Mr R gets his (omitted) qualifications, he will have better prospects of employment in the Northern Territory. The father says that Mr R did not give it enough time and effort to find work in Darwin. He says his family has good contacts and offered to assist him to find work but received no reply. He says that the offer is still open and there is the opportunity to earn a similar or higher wage than Mr R’s current one.
The mother says she and Mr R want to start a family and that if they have a baby, she would be a stay at home mum.

The father’s reasons for opposing the relocation

The father says that X is too young to be able to maintain the quality of his relationship with X at a distance.
The father is very concerned that Mr R will replace him as a father figure. The father was very concerned and distressed about an incident with respect to (omitted) College, a (omitted) school in (omitted).
The father was offended that the mother and Mr R discussed schools rather than the mother talking to him first. That is unrealistic. Mr R grew up in (omitted). It is a small town. It is only natural that she would ask for his opinion. Mr R said that (omitted) College is the only private school and is the best school. He gave evidence that historically there was a five year waiting list but that the school had expanded. He knows the principal personally. He rang to see if there would be a space for X. There would be. The principal sent him an information pack.
The information pack arrived the day the father came over. The father took great offence to Mr R obtaining the information pack. He interpreted this as Mr R overstepping his boundaries and excluding the father. Whilst I understand the father’s point of view, I think he is mistaken. Obtaining information packs about a school falls well short of deciding where to send a child to a school and falls short again of enrolling a child at the school. I accept the mother’s and Mr R’s evidence that they were well-intentioned and they deeply regret the hurt the father feels. They will be more sensitive in the future. The father says that he strongly objects to X attending mass and religious classes. He would only agree to X attending (omitted) College with those restrictions. As (omitted) College is a (omitted) school that is unrealistic. The mother had offered to be responsible for the school fees. That does not seem to be the issue for the father. During cross-examination, the mother said she did not mind what school X attends. There is a public primary school there. On that basis, there is no need to determine the school issue.
It is clear that the father feels very negative towards Mr R. He is the threat to the unity of the father’s family. He sees Mr R as trying to take his place as X’s father. The strength of the father’s feelings has to be seen in the context of his personal history. The father’s father was absent for much of his childhood because of work. The father did not begin to form a close bond with his father until he was 19 years old.

It took a lot of hard work. The father was tearful when talking about this. He does not want X to go through the same thing that he did. He is fearful that if he only has physical time with X during holidays, that is what will happen.
The paternal grandfather is terminally ill and has been fighting cancer for the past 2 years. The family is preparing for his death. X is close to his paternal grandparents and has occasional sleepovers at their house at his request. The father wants X to be part of the mourning process. He feels it is important. The mother is sympathetic and says that X can come up and be with his father and his family when this happens. I accept the mother is genuine in this. X is only 6 and the concept of death is hard to grasp at his age. It is even harder for a child, or indeed an adult, when there is distance involved.
The father and his partner also want to have a baby and want X to be a part of that.
The father is also fearful that he will be sidelined as a father because the mother has a distant relationship with her own father. As Ms D said, such a history can cause a person to devalue the role of fathers or value them very highly. I am satisfied that the mother does value the father’s role as X’s father highly.
I think the father interprets everything Mr R does in the most negative way possible. It is understandable particularly as his own father is dying, but it is not reasonable.
Both parents have re-partnered and their partners are a positive part of X’s life. They are step-parents. This means they will be role models for X. They are not X’s parents and never can be.
The father has the support of his partner Ms P. She works from home. She is able to assist the father with taking X to school and collecting him in the afternoon if needed. X attends after school care. He has made friends there and it has helped him develop his social skills.
The father was critical of Mr R for referring to himself as a male role model for X. It is hard to understand what is offensive about this. Presumably, both parents want X to be surrounded by good role models, including teachers and the like. I suspect that there was not an answer Mr R could give that the father could accept. The father needs to accept that Mr R has an important role in X’s life just as Ms P does.
The father is facing many emotional challenges. He may benefit from counselling such as that offered by CatholicCare NT, Anglicare or Relationships Australia. He should not be put off by any religious affiliation as religion does not come into it. These organisations provide families with valuable assistance. X may also need assistance as he will be experiencing major upheaval. They also specialise in assisting children in dealing with a range of issues, including separated parents, grief and loss.

Family consultant

The family consultant prepared a report dated 10 April 2014. Although the report is 10 months old, I did not see the value in obtaining an updated report in the circumstances of this case. That would have involved further delay and stress for the parties and their families. The hearing was initially scheduled to take place in August 2014 but was delayed at the mother’s request as she was seeking the assistance of

Ms D and wanted to obtain a report from her.
The family report writer interviewed Y who spoke positively about her time with the father and his partner. She described her father as being more emotionally attuned than her mother. Y also spoke highly of the mother and said she understood why she wanted to relocate but that she and her father would miss X.
The father discussed his own history of anxiety and depression with the family consultant.
The family consultant observed that both parents were child focused. The observed interactions with X, his parents, their partners and Y were all positive.
She recommends against the relocation. She observed that X is deeply loved and well cared for by both parents and this will continue to be the case regardless of the outcome. She assessed both parents and their partners as being emotionally attuned and capable. X has strong and positive attachments.
The family consultant expressed the view that it was unfortunate that Mr R did not stay in Darwin and retrain, which she said would have a short-term cost to him, whereas the relocation to (omitted) will have a long term cost to X’s relationships in Darwin.
When the family consultant prepared the report, the mother had not decided that she would relocate without X if she was not allowed to relocate with him.
The family consultant was provided with the updated court documents, including Ms D’s report prior to being cross-examined. It was somewhat surprising that she did not appreciate that the mother’s position had changed despite having the benefit of those documents.
The family consultant maintained her view that Mr R had not given long enough time to look for work in Darwin, particularly in light of the cost to X of the relocation. She said she thought the mother and Mr R were resourceful and capable people and that all the parties were child focused.
She agreed that it would not be in X’s best interests being separated from his primary carer. If the mother was to relocate without X, that would be a significant change to him which he would find stressful, as he would be seeking his mother’s comfort. X would need considerable reassurance and depending on how it is managed and how the information is given to him, he may feel that it is his fault or that his mother has abandoned him. X may find it hard to concentrate at school as he may have nightmares and show other signs of distress. How the parties manage telling X is important. It would be best to X if the parents can sit down and tell X about the decision together and show him that they have a united front about this. The parents are capable of doing this and were indicating in court that they will handle the situation with sensitivity and focus on making it as easy for X as possible. The parties were able to do this with respect to Christmas Day.
The mother’s counsel asked the family consultant if mental health can have a significant impact on parenting capacity. The family consultant answered that it can, depending on how controlled and managed it is.

It may be that it has no significance at all.
She still expressed the view that Mr R is the one person who can move and retrain, which would mean that X would continue to enjoy the benefits of regular time with both parents and extended family. X is very young and the distance is significant and there is a cost that both in terms of the travelling time but also the expense.
The father asked the family consultant about the impact on X’s relationship with his sister. She said that the siblings have a good strong bond and enjoy spending time together. The relationship will not be the same because they will not be seeing each other regularly.
The reality for X is that he will be dealing with stressful upheaval in his life, regardless of whether he moves with his mother or stays with his father. X has just turned 6 and does not have the cognitive maturity to understand what this relocation means. He may adjust well but his parents will need to look out for warning signs.
The father also asked about the importance of X being with his large extended family in Darwin and the importance of being with the family during the grieving process when the paternal grandfather passes away. She said it is important for X to be involved in parts of the grieving process and important to him to be shielded from some of that process as well.
She again emphasised the importance of the parents presenting a unified approach to X which would help reduce his anxiety. If X stays with his father, he faces a greater adjustment in some respects, because his primary attachment is to his mother. The fact that X has spent block periods of time with each of his parents for holidays is not an indication of how he will cope with a relocation. That is a very different thing and does not have an end to it.

Legal Principles and their application to this case

The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The court must regard the best interests of the child as the paramount consideration: section 60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in section 60B(1) help clarify what Part VII aims to achieve when it talks about best interests: section 60B(1). There are also principles that underlie these statutory objections: section 60B(2). Section 65D of the Act gives the court the power to make a parenting order which is defined by section 64.
In deciding whether to make a particular parenting order, section 60CA requires that I must consider the matters set out in section 60CC(2), being the primary considerations and section 60CC(3) being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B, that the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The concept meaningful relationship has been considered in a number of decisions including Waterford and Waterford [2013] FamCA 33, Mazorski and Albright [2007] 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405. There is no doubt that X has the benefit of a meaningful relationship with both his parents and that this will continue.
There are 13 additional considerations which are set out in section 60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child’s best interest being treated as paramount. There are no issues of family violence in this case.
Section 61DA(1) provides that when making a parenting order, the court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (section 61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (section 61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility, I am then required by section 65DAA(1) and (2) to consider whether to make orders that the child spend equal time and if not equal time then substantial and significant time with each parent.
In this case, the parties agree that they should have equal shared parental responsibility for X. That is certainly in X’s best interests. There is no doubt that X enjoys a meaningful relationship with both his parents. There are no issues of family violence or abuse.
For a parenting order to involve the child spending substantial and significant time with a parent, section 65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.
In MRR and GR [2010] HCA 4, the High Court found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the high court said:
“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 (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
The Full Court considered the issues of relocation in light of the 2006 reforms in Taylor and Barker (2007) 37 Fam LR 461 and said at paragraphs 53 and 83:
53. We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principal has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, as least in so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and KB & TC (2005) FLC 93-224).
83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an” equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parents.
Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF (1999) 24 FAM LR 756 at 792 His Honour Justice Kirby said:
“[144] … …a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.”
Parents are not obliged to remain living close together after separation. An individually freedom of movement is an important right recognised in the Constitution. His Honour Justice Kirby refers to this in AMS and AIF but also acknowledges that this right gives way to a child’s best interest if the two things conflict.
X is too young to express a view about the relocation as he does not understand what that will mean for him.
X enjoys a close and loving relationship with both his parents and extended family members on both sides of his family. Both parents have taken the opportunity to participate in the decision making about X’s welfare, spend time and communicate with him.
The mother raised the issue of the father owing the mother $1,800 for his share of after-school childcare payments, but there was otherwise no complaint raised about either parent failing to fulfil the obligations to maintain their role. The parties have agreed to a holiday regime that will involve cost to them by which they will share.
There is an issue that the practical difficulty and expense of X spending time with both parents and the reality of this is reflected in the orders consented to by the parents, whereby X will spend time with a parent who he does not live with four times a year per block periods during school holidays. It may be that there are other periods that he can spend time with a parent, if that parent is going to be in a location where X lives or nearby. Realistically given, the travel involved and the costs to provide for more than four times a year would create burden on both parties and on X.
Both X’s parents are able to provide a high standard of care for X, I have no concerns about either parents parenting capacity.
Both parents have demonstrated that appropriate attitude to X and the responsibility of parenthood.
The issue of making an order which is least likely to lead to further proceedings is not of much relevance to this case. X’s parents are only before the court because it is a location issue. Once this issue is resolved, I am confident the parents will continue to work together for X’s best interests and whichever order I make is unlikely to lead to further proceedings. My assessment of the parents is that if they end up living in the same location again, they will be able to make appropriate adjustments to the parenting arrangements to address that.
Having regard to section 65DAA(5), it is not possible to make orders whereby X will spend substantial and significant time with both parents. The distance between (omitted) and Darwin is simply too great. As a consequence, the parent who does not have X living in their primary care will not be able to participate in school activities and extra-curricular activities on a weekly basis, which is part of what can enrich a relationship between the child and parent. Holiday time cannot make up for that nor can Skype or other audio visual communication.
This is a finely balanced case. I accept that the mother genuinely believes the move to (omitted) with X is in X’s best interests. She would be able to continue to be X’s primary carer and will not have to work outside of school hours. She is unhappy in Darwin and finds it too difficult to remain separated from her fiancé and to those reasons, she is made to make a difficult choice to move without X if she is not allowed to move with him. There is also no doubt that the mother has been X’s primary carer throughout his life and that the father has also played a significant role.
X has many strong connections in Darwin, not only because of his father living there, but because of his close relationship with his sister and the father’s extended family. It is not disputed that X enjoys a close and loving relationship with the father’s extended family as well as the mother’s extended family. The difference is that the father’s extended family lives locally. X enjoys spending overnights at his grandparents’ homes, on occasions he shares a bedroom with his sister during the four nights a fortnight he is at his father’s home. He is also close to the mother’s extended family, notwithstanding the fact that the mother’s mother lives in Brisbane and not in Darwin. One positive factor is that X is used to communicating with family members via Skype or other audio visual means and again, I am confident that the family will continue to facilitate this. It will take some measures to help X adjust by being able to communicate with the parent he is not living with regularly. It will not be the same experience, and X is still likely to struggle to adjust to whatever outcome the court makes.
The mother’s counsel referred to the Full Court decision of

Taylor & Barker
(2007) 37 Fam LR 461 and the decision of

Judge Brown in Tellam and Calhoon [2013] FMCAfam 264. She made particular reference to paragraph 100 of Taylor & Barker which says:
While there is authority (notably, U v U) for the proposition that a court in determining a so-called relocation case might do so on the basis of a possible relocation to the place of the proposed relocation by the parent who opposes the relocation of the child, we do not understand it to have yet been suggested that such cases could, or should, be determined on the basis of what might be the likely response of the partner of the parent proposing relocation in the event that the court does not permit relocation. We assume that his Honour had such a situation in mind when he referred to “social engineering”.
The mother’s counsel submits that it would be an error for the court to not allow the relocation simply on the basis of the proposition that the mother’s partner could relocate. She says that the family consultant made this error in her recommendations.
She also referred to Tellam and Calhoon [2013] FMCAfam 264 is an interim relocation decision. Judge Brown provides a succinct summary of the applicable law in relocation cases and the particular difficulties associated with interim relocation decisions. I have addressed the legal principles above. This case does not advance matters further.
I am basing my decision on the current circumstances before me.

I accept that the father is not in a position to move to (omitted). Neither party proposed this. I also accept that the mother is unable to stay in Darwin. The decision I am making is based on the evidence presented to me that the mother will relocate without X. The mother and Mr R may choose to move back to Darwin. They may not. Mr R is not a party to the proceedings. The court cannot compel him to move. It is clear that it would be in X’s best interests if both his parents and their partners lived in Darwin but that is not an option I am being presented with.
In my view balancing the competing interests in this case, it is not in X’s best interest to allow the relocation. X has strong connections to Darwin. He has a close relationship with his father, his sister Y and the father’s extended family as well as with Ms P and her Family.
X does not have the same connections in (omitted). X has never lived there full-time. X will continue to enjoy a close relationship with the mother’s mother and step-father as he does now. They live in Brisbane and travel to see X as they have done so previously.
I accept the mother may continue to experience mental health problems as it will be difficult for her to adjust to not having X in her primary care. However, I am not satisfied on the evidence that the move to

(omitted) would have automatically alleviated her mental health issues. There is uncertainty there and the move to (omitted) may not be the cure that she hopes for.
I am satisfied that the mother will continue to seek treatment. I accept the mother’s evidence that she has not been able to be as emotionally available to X in recent months because of her mental health, which has escalated by living alone in Darwin without her partner and because of financial pressures. Both of these factors will be alleviated by her move. Both X’s parents will give X the support he will need to adjust to his changed circumstances. In the short term, there will be challenges for all involved as there would have been if I allowed the relocation.
If the mother and Mr R decide to return to Darwin in the future, I am confident that the parties will be able to agree in a short term care arrangement.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 24 March 2015

[2015] FCCA 611

24 March 2015

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