Marston and Marston - [2007] FamCA 1362

FAMILY COURT OF AUSTRALIA

MARSTON & MARSTON

[2007] FamCA 1362

FAMILY LAW – CHILDREN – Relocation – Application by mother to relocate with children from Northern Territory to Victoria – Father agrees to proposed relocation but seeks that relocation not occur for two years– Consideration of principles relevant to determination of relocation cases following 2006 amendments to Family Law Act 1975 – In best interests of children for relocation to occur now rather than later – Father intends to relocate in future to be near children also – Upon father relocating, children to spend equal time with each parent

Family Law Act 1975 (Cth)

U & U [2002] FLC 93-112
A & A: Relocation Approach (2000) FLC 93-035
AIF & AMS (1999) FLC 92-852
F & C [2005] FamCA 573
M & K [2007] FMCAfam 26
Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102
M & S (formerly E) [2006] FamCA 1408
Morgan & Miles [2007] FamCA 1230
Taylor & Barker [2007] FamCA 1246

APPLICANT:

Mr Marston

RESPONDENT:

Mrs Marston

FILE NUMBER:

DNC

162

2007

DATE DELIVERED:

21 November 2007

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

4, 5, 6 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Giacomo

SOLICITOR FOR THE APPLICANT:	Ward Keller
COUNSEL FOR THE RESPONDENT:	Ms Truman

SOLICITOR FOR THE RESPONDENT:

Michael Whelan & Associates

Orders

That the parties have equal shared parental responsibility for the children B born … December 1993 and L born … April 1996.
That the mother be permitted to move with the children to reside in the Geelong area provided that such move does not take place until the conclusion of the final term in the 2007 school year.
That until the end of school term 2007 the existing parenting orders continue.
That upon the children moving to reside in the Geelong area and until the father moves to reside permanently in the Geelong area the children shall live with the mother and spend time with the father as follows:
(i) half of the April and September/October school holidays,
(ii) all of the July school holidays and
(iii)half of the December/January school holidays save and except for the December 07/January 08 school holidays the children spend time with the father for a period of at least two weeks at a time to be negotiated between the parties taking into account the proposed move to the Geelong area.
(iv)If the father is in the Geelong area during term time from Friday after school until Sunday at 6.00 pm provided that:
(a)the father gives the mother at least 14 days written notice of his intention to be in the Geelong area;
(b)the father ensures that the children continue to attend their extra-curricular activities;
(c)such weekend time is not more than five weekends each term.
(v)By telephone and internet; the mother inform the father of the landline telephone number and internet address for the children within 48 hours of connection.
(vi)That the children spend time with the father on special occasions as agreed or as ordered by the Court;
That upon the father moving to reside permanently in the Geelong area and residing not more than 20 kilometres from the children’s school or home (or otherwise as agreed between the parties) and commencing the second Friday after the father informs the mother of his address in the Geelong area the children shall live:
(i)with the mother during term time from conclusion of school on Friday until the conclusion of school Friday the following week; and
(ii)during term time with the father the other week;
(iii)during school holidays the children live with the mother half of the school holidays and with the father half of the school holidays.
Any handovers which do not take place at school are to take place with the mother or her authorised agent (being an adult known to the children) delivering the children to the father’s home at the commencement of time residing with him and the father or his authorised agent (being an adult known to the children) returning the children to the mother’s home at the conclusion of the time residing with him.
Until the father moves to reside in the Geelong area the parties are to share the costs of the airfare of the children travelling between Melbourne and Darwin with the mother to deliver the children to and collect from the Melbourne Airport and the father to collect the children from and deliver to the Darwin Airport (or such other arrangements as may be agreed).

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 162 of 2007

MR MARSTON

Applicant

And

MRS MARSTON

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between the father and the mother originally related to both financial matters and matters concerning their children. On the first day of the conclusion of the trial, with the assistance of counsel, the parties negotiated a consent order in relation to financial issues. Final orders concerning financial matters were made in the morning of the 5 September 2007. The remaining issues concern the children of the marriage B who was born in December 1993 (now aged 13, nearly 14) and L who was born in April 1996 (now aged 11).
At the commencement of the hearing before me on the 5 September the mother presented the final orders which she asked the Court to make in relation to the children which provided in general terms that the parents have equal shared parental responsibility for the children, that the children live with her and that she be permitted to relocate with the children to the Geelong area, in Victoria at the conclusion of the school year in 2007.
The orders that the mother sought also provided that the children spend time with the father in specific terms on alternate weekends and school holidays, including making provision for the children to spend time with the father if he also moved to the Geelong area and if he did not relocate.
By the time the trial commenced before me the father’s position was that the children should not be permitted to relocate with the mother from the Northern Territory to the Geelong area at the end of 2007, but rather they should be required to stay in the Northern Territory until the end of 2009 when they could relocate. The father also proposed that before the children relocated and after the children relocated, they should spend equal time with each parent.

Trial

The trial commenced before me on Tuesday 4 September 2007 when the parties used time to negotiate a settlement of the financial matters. Consent orders were made by me in relation to financial matters on the morning of the 5 September 2007.
At the trial the father was represented by Ms Giacomo, the mother by Ms Truman. The father relied on his affidavit filed on the 10 August 2007. He was cross-examined. His present partner, Ms R, gave evidence relying upon her affidavit filed on the 10 August 2007. She was also cross-examined.
The mother gave evidence and was cross-examined. The mother relied on her affidavit filed on the 13 August 2007. The affidavits of the mother’s father and sister were received in evidence without the witnesses being required for cross-examination.
The Family Report of Mr H, Family Consultant, of 26 July 2007 was received. He was cross-examined by both counsel.
The trial concluded on Thursday 6 September 2007 when I reserved my judgment.

Background and Chronology

The mother was born in September 1964 and is now aged 43.
The father was born in November 1964 and is now aged 43.
The father has qualifications based in IT and from his employment for many years with the Defence Force. The mother has been employed as a registered nurse and has specialist qualifications.
The parties were married in November 1991 and commenced living together in Victoria. The two children of the marriage are B who was born in December 1993 and is now aged 13 years and L who was born in April 1996 and is now aged 11 years.
The father has been posted to various Military bases. In 1998 the family moved from Victoria to Queensland. In January 2003 the father was posted to the Northern Territory.
After moving to the Northern Territory with the children the parties purchased a home in December 2005.
The mother and father separated on the 24 March 2006.
The father travelled interstate and overseas from the 10 April 2006 until the 26 May 2006. After his return from these overseas and interstate work commitments the father commenced living with Ms R.
The father told Mr H that he had been in a relationship with Ms R since October 2005.
In cross-examination Ms R admitted that prior to the husband and wife separating she had sent very intimate emails to the husband and arranged intimate meetings with him.
The father and Ms R say that their “de facto relationship” commenced in May 2006.
The relationships between the father and the mother and the mother and Ms R are marked by conflict especially in the period shortly after the father left the mother and commenced a de facto relationship with Ms R.
In May 2006 the father started long service leave from the Defence Force. He commenced employment as a private temporary employee with the N Company, the firm for which he now works. He accepted a permanent position with the N Company on the 12 August 2007.
In June 2006 as a result of an incident at a dance hall function, Ms R applied for a restraining order. By consent and without contest or necessity to call witnesses the mother and Ms R agreed a restraining order for 6 months.
In August/September 2006 the mother’s solicitors wrote to the father indicating her desire to move from the Northern Territory to Victoria.
The father and Ms R purchased a property at P in the name of Ms R in September 2006.
The father commenced proceedings in the Federal Magistrates Court in Darwin in November 2006. In her Response filed in December 2006, the mother included an application to be allowed to relocate to Geelong/ Melbourne with the children in January 2007.
Interim orders were made in the Federal Magistrates Court on the 22 January 2007 which provided:
“(1)The parties have equal shared parental responsibility for the children of the marriage [B] born […] December 1993 and [L] born […] April 1996 (herein after referred to as “the children”).
(2) The children live with the mother.
(3) The children spend time with the father as follows:
(a)During school terms on alternate weekends from after school on Friday until the commencement of school the following Monday (or Tuesday in the event that Monday is a public holiday) with such order to commence on the first weekend after school has recommenced;
(b)During school terms in each week from after school on Tuesday until the commencement of school the following Wednesday;
(c)For half of each school holiday period, the halves to be agreed between the parties and failing agreement to be the first half in 2007 and each alternate year thereafter and the second half in 2008 and each alternate year thereafter;
(d)In the event that the children are not otherwise with the father pursuant to these orders on their respective birthdays the children will spend four hours with the father on their birthdays the specific hours to be agreed between the parties and failing agreement to be 3.30 pm and 7.30 pm.
(4)The father communicate with the children by telephone on each Tuesday, Thursday and Sunday when the children are not otherwise with him pursuant to these orders between the hours of 6.00 pm and 6.30 pm.
(5)The mother communicate with the children by telephone on each Tuesday, Thursday and Sunday when the children are not otherwise with her pursuant to these orders between the hours of 6.00 pm and 6.30 pm.
(6)In the event that the children are not otherwise with the mother pursuant to these orders on their respective birthdays the children will spend four hours with the mother on their birthdays the specific hours to be agreed between the parties and failing agreement to be 3.30 pm and 7.30 pm.
(7)In the event that either party wishes to take the children interstate during any holiday period when the children are with him or her that party shall give the other party fourteen days notice in writing of such intention and provide the other with an itinerary of proposed travel including anticipated dates of departure and return and contact details for the children including details of telephone contact numbers.
(8)The parties provide to the other at all times their respective residential and postal addresses and their electronic contact details including contact telephone numbers, both mobile, home landline and work landline and email addresses and inform the other of any changes of these details within two days of such change.
(9)The mother and father each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the children.
(10)The father be at liberty to attend or visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.
(11)The father and mother be restrained and an injunction be granted restraining them from denigrating the other, the other parent’s partner or the other parent’s family or permitting any person in their presence to denigrate the other parent, the other parent’s partner or the other parent’s family to or in the presence of the children.
(12)The parties’ competing application be listed for a conciliation conference before a Registrar of the Court on 15 February 2007 at 11.00am.
(13)The parties exchange all valuations in respect of any property in dispute between them, including details of any superannuation held in their respective names, 14 days prior to the conciliation conference mentioned in order 12 hereof.
(14)The matter be listed for further mention before the Court on 6 March 2007 at 9.30am which occasion it is anticipated the matter will be fixed for final hearing and a family report ordered.”
The father and his new partner Ms R have a child T born in March 2007. Ms R is a qualified teacher. She last worked as a relief teacher in 2004. She was working shortly prior to the birth of T. Ms R does not now work outside the home.
In August 2007 the husband retired from the Defence Force and has received a substantial sum by way of retirement benefit.
The father admitted that he was aware for some time that the mother was unhappy in the Northern Territory and that she sought to relocate back to Victoria with the children.
Initially the father opposed the application of the mother to relocate with the children. At the hearing before me in September 2007 the father agreed that the children should relocate to Victoria but said that it should not happen until the end of 2009 (rather than the end of 2007 which the mother wanted).
The Family Report prepared by the Family Consultant, Mr H, is dated 26 July 2007 and followed interviews with the parties, the children and Ms R which all took place in July 2007.
It was agreed by the parties that B has had some difficulties forming relationships and settling in to the changes of school which have taken place. It was agreed that his extra-curricular interests were more indoor type of activities rather than outdoor sporting activities. The parties also agreed that L had a particular interest in pursuing her dancing.

Main Issues

The main issues to be determined all fall within the criteria the Court is required to consider under section 60CC.
The main issues include the capacity and willingness of the mother to encourage an ongoing relationship between the children and the father, the ability of the children and father to maintain a meaningful relationship if they moved at the end of 2007 rather than the end of 2009 and the significance and basis of the children’s wishes in relation to the time they spend with each parent and when they should move to the Geelong area.
Other issues which were not easily categorised as “main” or “significant issues” were:
(1)the quality of the friendships each of the children have made in the Northern Territory;
(2)the capacity of the parents to communicate concerning the children’s needs;
(3)the significance of the relationship between the children, Ms R and their sibling T;
The evidence of the mother’s father and the mother’s sister was received without the necessity for any cross-examination. Both of these affidavits confirm that if the mother is given permission to reside in the Geelong area with the children at the end of 2007, she and the children will enjoy the support and friendly relationships with the mother’s extended family. This is likely to be more frequent than if the children continue to reside in the Northern Territory.

The Law

Part VII of the Family Law Act contains the substantial provisions in relation to children. Significant amendments came into effect on the 1 July 2006.
Section 60B sets out the objects of that part of the Act.

Section 60B (1) and (2)

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.
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 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).
There are fourteen Divisions of Part VII containing approximately 230 sections and many sub-sections.
No particular section deals with the difficult cases involving the proposed relocation of children from one area to another involving possible separation of the children from one parent.
Section 60CA provides:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”
Primary and additional considerations which must be considered by the Court when determining what is in the child’s best interest are set out in section 60CC.
Division 2 of Part VII deals with parental responsibility and creates a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

In the matter before the Court both parties sought an order that the parents have equal shared parental responsibility. Equal shared parental responsibility is appropriate.
Section 65DAA provides:

Section 65DAA

Equal time

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.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

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.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

For the purposes of subsection (2), a child 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.
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

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.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC (3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
The particular difficulties faced by this Court in deciding cases about the proposed relocation of children have been considered by the Full Court of the Family Court of Australia and the High Court of Australia. In the decision of the High Court of Australia (being a Court constituted of all seven Judges of the High Court) in the matter of U & U [2002] HCA 36, (FLC 93-112) the High Court considered the principles to be applied where one parent proposed to relocate to another country. This decision was before the amendments in 2006.
The provisions at that time included, section 65E, which then provided:
“In deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration.”
Section 68F as it then was, contained provisions similar to section 60CC although none were described as “Primary” or “Additional Considerations”.
The High Court also considered the provisions of applicable sections such as sections 60B and section 61C.
Since the High Court’s decision the Full Court of the Family Court of Australia has considered the application of the principles which apply to relocation cases and the ongoing significance of earlier decisions such as A & A; Relocation Approach (2000) FLC 93-035 and AIF & AMS (1999) FLC 92-852.
In the matter of F & C [2005] FamCA 573 the Full Court said:
“123. Authoritative guidance on the approach to relocation cases is provided by A v A: Relocation Approach and the High Court decision in U v U (2002) FLC 93-112. Some of the important principles that are established by these authorities are that a trial judge is obliged to give careful consideration to the proposed arrangements of the parties, but is not bound by those proposals. Next, the court must consider the matters in s 68F (2). The objective is always to achieve what is in the best interests of the child. Further, it is an error to require demonstration by the party seeking to relocate of compelling reasons for the proposed relocation. Finally, the right to freedom of mobility of a parent must defer to the expressed paramount consideration, the welfare of the child, if that were to be adversely affected by the movement of a parent.
124. In AMS v AIF at paragraph 150 Kirby J. said:
“….…an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re‑exercised on a retrial.” [footnotes omitted]””
This decision was delivered before the amendments of the 1 July 2006.
In the present matter before the Court counsel for the father relied upon the decision of Federal Magistrate Altobelli delivered on the 14 February 2007 in M & K [2007] FMCAfam 26. In that decision the Federal Magistrate deals with the applicable law as follows:
“28.To the best of my knowledge, the Full Court of the Family Court of Australia has not yet determined whether the amendments to the Family Law Act 1975 enacted on 1 July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 have led to a change in the law relating to relocation. However, the Full Court’s recent decision in Goode and Goode [2006] FamCA 1346 does provide guidance as to how the new Part VII of the Act is to be interpreted and applied. That decision is, for the time being, the only authoritative guidance on the effect of the changes. Whilst the context of the decision was interim parenting orders, it is nonetheless a useful starting point to consider relocation after 1 July 2006.
29.Before considering Goode & Goode, however, the law as it existed before 1 July 2006 should be summarised. The three most significant decisions in recent times have been the High Courts decision in AMS v AIF and AIF v AMS [1999] HCA 26; the Full Court’s decision in A v A: Relocation Approach (2000) FLC 93-035; and the High Court’s decision in U and U (2002) FLC 93-112. There is an excellent and succinct discussion about the law emerging from these cases in the Family Law Council’s Report on Relocation in paragraph 4.52:
In summary, the “general consistency of approach” that can be drawn from the discussion above about the legislative provisions and case law regarding the best interests of the child is as follows:
·   Relocation cases are not a special category of cases. The Family Law Act does not specifically mention “relocation” and the cases are best described as “parenting cases where the proposal of one of the parties involves relocation.”
·   The best interests of the child is the “paramount consideration, but not the sole consideration.” For example, the interests of the parents can be considered if they are relevant to the best interests of the child.
·   The court must consider the competing proposals for the future care of the child, but is not limited to the proposals presented by the parties. All the proposals need to be evaluated in terms of the advantages and disadvantages for the best interests of the child and the court should explain why a particular proposal is preferred.
·   The issue of relocation cannot be separated from the issue of residence and the best interests of the child. The relevant factors in subsection 68F (2) must be considered and the weight given to each should be explained by the court. The object and principles in section 60B provide guidance for this exercise.
·   A court cannot require the person who wishes to relocate to demonstrate “compelling reasons” for relocation as this would incorrectly focus on the parent’s interests instead of the best interests of the child.
·   It should not be assumed that the contact parent cannot relocate as well, as the interests of the child (not the parent/s) must be paramount.
30.The changes that came into effect on 1 July 2006 are substantial. It is possible that the cases referred to above are still useful but no longer determinative of how relocation cases are to be decided. In the judgment of Kirby J in AMS v AIF, His Honour sets out nine general propositions derived from the authorities spanning thirty years. His Honour’s first proposition, set out at paragraph 86,401, is as follows: “First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression.”
31.In referring to legislative change, Kirby J may well have had in mind the substantial changes brought about by the Family Law Reform Act 1995. It is possible that the Shared Parental Responsibility amendments to the Family Law Act in 2006 were even more substantial than its predecessor about a decade earlier. The substantive point made, however, is that the starting point is legislation. In the metaphorical kingdom of family law, legislation reigns supreme. If the legislation has changed significantly, it may well be that the existing cases provide far less guidance than they once did. In the recent decision of Benjamin J in Elspeth and Peter ((P)HBF150/2003, 21 December 2006) at paragraph 45, his Honour stated: “It is clear that the changes are substantial and will impact on decision making when parenting orders are made from 1 July 2006.”
32.The Full Court in Goode provides several key guiding principles. The first on is found at paragraph 10:
“Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC 92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC (1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.””
The Federal Magistrate continued to consider various other matters in the context of the applicable law and says at paragraph 36:
“36.If I am correct, and the decision-making process gets as far as a consideration of s.65DAA, and the evidence is that the non-relocating parent cannot move, or it is not reasonable to expect them to move, then it is hard to imagine how relocation could be allowed.”
In further paragraphs the Federal Magistrate considered the definition and meaning of the word “meaningful” and discusses the other authorities and the general law, coming to a conclusion at paragraph 58:
“58.As indicated above, I believe that under Part VII of the Act, in most cases a relocation would not be permissible unless the presumption of equal shared parental responsibility in s.61DA has either been negated under s.61DA(2) or rebutted under s.61DA(4). There is no evidence to indicate that s.61DA (2) applies.”
However, the decision of His Honour Justice Kay in Godfrey & Sanders (2007) 208 FLR 287 delivered on the 23 February 2007 (sitting as the Appellate Court from a decision of a Federal Magistrate) also deals with the question of relocation and the changes to the parenting provisions of the Family Law Act, in particular the provisions of the new section 60B, section 60CC and section 65DAA.
Of significant assistance are the portions of His Honour’s judgment as follows:
“27.The Notice of Appeal contains 26 grounds and 11 sub-grounds asserting errors on behalf of the Federal Magistrate. The oral hearing of the appeal was not conducted on a basis of an address on each of the grounds but I invited counsel for the appellant, supported by counsel for the Independent Children’s Lawyer, to identify where there was a crucial error in the reasons for judgment that would indicate that it was appropriate for an appellate court to interfere in a discretionary judgment. It seemed to me that many of the grounds of appeal were inappropriate and unfairly critical of the way in which the Federal Magistrate had undertaken her difficult task.
28.Relocation cases are notoriously difficult. Both parties have valid claims of right. The legislation requires the Court to regard the best interests of the child as the paramount consideration but what is in the best interests of the child is not a matter about which there may be universal agreement. Further, as Kirby J said in AMS v AIF at 207-208:
…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
29.The very many authorities that discuss the appropriate principles to be applied in relocation cases and as cited at the commencement of the Federal Magistrate’s judgment (see par 14 above) are all decisions that were made before the substantial amendments to the Act in July 2006. My research has only located one decision in which the effects on previous decisions relating to relocation cases as a result of the new amendments has been analysed by a Judge of this Court. That is a decision of Dessau J in M and S (formerly E) [2006] FamCA 1408.
30.That case concerned a proposed move to England from Australia by the mother of the child which would severely impact upon the existing arrangements that saw the child spending time with her father on two weekends per school term and half the school holidays. Her Honour said:
“26.There is no explicit relocation provision in the new legislation, although one was considered. Recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs’ Report on the exposure draft of the Bill (“the Report on the Bill”) recommended that the Act be amended to include a provision that, where there is a proposal for any change in the child's living arrangements that would substantially affect the child’s ability to reside or spend time regularly with the other parent or extended family, the court “must be satisfied on reasonable grounds” that such relocation would be in the child’s best interests. The recommended provision would have effectively placed an onus of proof on the moving party, and as such would have been a significant shift from existing case-law. The proposal was not adopted, although in second reading speeches there was discussion about possibly incorporating it into the Act after a report from the Family Law Council on relocation. For completeness, I note that the Family Law Council report was published in May 2006. The Council concluded that the best interests of the child should remain the paramount consideration in relocation cases, with the factors in s 60CC to be considered.
27.The amended Act has one reference to a parent moving away from another, in s 4, where “major long-term issues” are defined as including:
“(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”
Save for underlining the significance of such a move as an important issue for parents to decide, that definition does not assist further as to the correct approach in such cases.
28.Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case [(2006) FamCA 1346] observed (at para 72):
“… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…”
29.Before July 2006, the object of Part VII was expressed in s 60B(1) as follows:
“The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
30.In the recent amendments, s 60B(1)(a) provides that the objects 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;”
In the revised explanatory memorandum to the Bill, it was noted (at para 52) that the object was consistent with the introduction of a presumption in favour of equal shared parental responsibility.””

Justice Kay also quotes with approval the references by the Full Court in A & A; Relocation Approach (Supra):
“39.The Full Court in A & A; Relocation approach (2000) FLC 93-035 at 87,553 said (inter alia):
“In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposed for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the court to order a regime which would best met the right of the child to know and have physical contact with both of its parents.””
The decision of Her Honour Justice Dessau, as quoted by His Honour Justice Kay, emphasises the importance of the best interests of the children being ascertained by consideration of the objects and principles contained in section 60B and the primary and additional considerations contained in section 60CC.
I rely upon paragraph 32 of His Honour’s judgment in Godfrey & Sanders (Supra) that concludes that there is:
“ …..no reason to depart from the conclusions reached by Dessau J that whilst the various provisions of the Act, as amended, emphasise the importance of maintaining an appropriate relationship between a child and its parents, the best interests of the child remain the paramount consideration.”
On the 17 October 2007 The Honourable Justice Boland’s judgment in Morgan & Miles [2007] FamCA 1230 was delivered. This was an appeal from a Federal Magistrate’s interim order. However, Her Honour considered the general principles and in a section entitled “Whether the Act now requires different principles to be applied in determining a parenting application when one party wishes to relocate” said:
“79.In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80.It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”
On the 19 October 2007 the Full Court delivered its decision in Taylor & Barker [2007] FamCA 1246 which supports the Court making findings in relation to s60CC criteria and at the same time considering the matters in s65DAA.
Taking into account the judgments of Justice Kay in the matter of Godfrey & Sanders (Supra), Justice Boland in Morgan & Miles (Supra) and Taylor & Barker (Supra), I turn to consider the matters required by Part VII of the Family Law Act.

Discussion of evidence and findings.

The father relied upon his affidavit and was cross-examined. Whilst he acknowledged that communications between himself and the mother had been difficult, especially shortly after the separation, he was reluctant to take any responsibility for disagreements between them.
The father did admit that upon transfer from Queensland to the Northern Territory, they discussed the fact that the posting would “probably be a short posting”, with the possibility thereafter of a posting in New South Wales. He admitted that prior to the separation he was aware that the mother was increasingly unhappy about the ongoing placement in the Northern Territory. He admitted that she certainly “missed her family a lot”.
During cross-examination he admitted that B had told him that he was unhappy in the Northern Territory and that B had reported being “bullied” at school, including having peanut butter put in his hair.
The father’s evidence was that, prior to resigning his position with the Defence Force, he had not sought any posting outside of the Northern Territory and that on the 12 August 2007 (while he was well aware of the mother’s desire to move to Victoria with the children and the outstanding proceedings concerning that issue) he took up permanent employment with the N Company which provided him with a base salary of $94,000 plus a $15,000 annual locality allowance to compensate for the isolation of the Northern Territory.
When asked what would happen if the Court permitted the mother and children to move to Victoria at the end of 2007, the father said he did not know what he would do, but “would be very very inclined to move as practically as possible” taking into account what he described as “his commitment to his employment” and that his “house was not in a saleable condition”. When cross-examined further about his commitment to his employer, he said he “felt morally obliged to stay on” until a particular job was completed and this was “likely to be the end of next year”.
In relation to the sale of the house he said that the house in which he and his partner, Ms R, were now residing (which was purchased in Ms R’s name) was a home which they moved into in September 2006. He asserted that there were flaws in the house which had not been disclosed at purchase and that if it was sold in its present condition he would suffer financial consequences.
The father’s evidence called into question the mother’s evidence that neither of the children had close friends in the Northern Territory, although the father admitted that B had difficulties socialising and forming friendships.
In his oral evidence the father conceded that the children sometimes say things to him or the mother which they believe the listener wanted to hear. However on the question of relocation the father said that the children would not lie about something so significant. He accepted that they were true and honest when they spoke to Mr H, the Family Consultant, about their wishes concerning relocation.
It was however asserted that their wishes had been influenced by the mother and her wishes.
Paragraph 104 of the father’s affidavit states:
“104.On 7 June 2006 the mother assaulted [Ms R] in front of [B] and [L] at the Wednesday night social dance group. She was abusive and calling [Ms R] a “slut”. She said to [Ms R] “I hate you” “fuck off” and “you have stolen my husband”.
The father alleged at paragraph 10 in his affidavit that:
“10.Despite the orders the mother has breached the orders on a number of occasions to deny me time with the children. The most recent example was the June/July school holidays. The orders provide that the children are to spend half of the school holidays with each parent. Despite this order the children spent 18 nights with their mother an only 15 nights with me. This was a unilateral decision made by the mother and not consented to by me.”
During his oral evidence it appeared that there had been a disagreement between the mother and the father about the interpretation of the interim orders on the basis of the day on which his half of the school holidays commenced. The father informed the Child Support Agency that he had the children for 147 nights and should therefore be paying a lower rate of child support than assessed. (The wife maintained that the children were staying with the father for 142 nights per year).
The father has been successful in his application to reduce the Child Support based upon the interpretation that he put forward to the Child Support Agency.
Paragraphs 129 and 130 of the father’s affidavit state:
“129.From her Client Questionnaire I note that the mother is proposing that the children spend time with me during school holiday periods. I do not know how it is she proposes that the costs of travel be paid.
130.If I was to be solely responsible for the payment of the flights for the children this would cause me financial hardship given my current circumstances. It is very likely that I would need to make an application to reduce my child support on the basis of the high costs of spending time with the children. Regardless of who pays for the travel, our children would be negatively financially affected.”
The father’s evidence was however that he has received a substantial sum upon retirement from the Defence Force (which has been taken into account in the property settlement proceedings) and is currently receiving a salary package in excess of $100,000 per annum.
In cross-examination the father admitted that he had separated from the mother on the 24 March 2006 and that he had been either interstate or overseas from the 10 April 2006 until the 26 May 2006. Ms R also admitted that she and the husband had been exchanging intimate emails prior to the separation. The father blamed the mother for her emotional reaction without taking any responsibility for his own behaviour.
When he was cross-examined about the allegation that the mother had assaulted Ms R in front of the children he was asked “what was the assault?” He replied that the mother had stood over Ms R and spat one or two centimetres from her face and abused her in front of other people. When cross-examined about the “spitting” he said this happened “as she spoke”. In the cross-examination the father then admitted that the mother had not deliberately spat at Ms R. He denied that Ms R and the father had been provoking a reaction from the mother during the dance hall activities, but he said “I may have kissed her during the evening, but not passionately”.
During the cross-examination the father admitted that there were more opportunities for the family in the Geelong and greater Melbourne area and that the heat of the Northern Territory has at times exacerbated B’s eczema.
During cross-examination the father also conceded that he had the financial capacity to pay half of the children’s fares for the times which the mother was proposing the children spend with him if he did not move and that it was financially feasible to maintain regular contact with the children by telephone and internet.
The father admitted that on one occasion when playing a “fighting” game on the computer with B he told B that he was thinking of the mother at this time. He said that this happened only once and that he regretted it.
The father has special qualifications in IT. He said that he had carried out some internet searches looking for employment in the Melbourne/Geelong area and had written four letters to recruitment agencies in the Geelong area.
The father confirmed that he and Ms R plan to provide “home schooling” for their child T. The father said that he considered the state education system to be flawed.
The father’s current partner, Ms R, gave evidence. She relied upon her affidavit and was cross-examined. Ms R last worked as a teacher approximately two years ago when she was a relief teacher.
Ms R also confirmed that she proposed to provide “home schooling” for T. She described this as “a very effective way of teaching children” and “very rewarding” for herself and the children.
Ms R’s affidavit refers to the incident on the 7 June 2006 as follows:
“19.On 7 June 2006 the mother verbally abused me at the […] Social Dance group in front of the children. She said to me words to the following effect:
“I hate you. You are a slut. Fuck off. You think you are married to him he is married to me and always will be.”
20.As a result of this incident, the email and the verbal threats that [the mother] had made I was fearful for my safety. I reported the matter to the police and they applied for a Domestic Violence Order on my behalf against Michelle for 12 months.
21.At the […] court house prior to the Domestic Violence Restraining Order matter being heard by the Magistrate, negotiations were made between [the mother] and me, at her request. [The mother] and I mutually agreed to a consent order that would enable all of us to continue to attend the children’s functions and other functions at the same time. This order was made for a period of 6 months.”
Ms R denied that the only comment the mother had made at this incident was that she called her a “slut”. Ms R did not recall kissing the father during this evening and said that there may have been “squeezing hands”.
At the end of her evidence Ms R said that if there were financial needs as a result of relocation she may reconsider the proposal to have “home schooling” for T and any other children.
The mother relied upon her affidavit, gave brief oral evidence and was cross-examined. She denied “spitting” at Ms R at the dance hall incident in 2006.
The mother confirmed her concerns about the violence at B’s High School, saying that B had suffered incidents in which another child had hit him on his arm, a child had held him by the shirt collar, he had had cream rubbed into his hair and peanut butter rubbed into his hair.
During cross-examination the mother did admit that L had friends in school. She continued to assert however that L did not have any close friends.
A report from Ms Y concerning B’s behavioural problems was acknowledged by the mother, but she emphasised that this report (Exhibit 1) related to B’s difficulties in Queensland in 2002.
The mother conceded that a change of high school to M High School near Geelong may not bring about a complete change in B’s behaviour, rather she asserted that B would have more interests in common with children from a city or suburban area, rather than from a country area.
The mother was reluctant to emphasise the benefit of the children having frequent and regular time with their father, however she conceded that they both had a meaningful relationship with the father. She said that B was not happy with the Tuesday night time with his father and said that he found this disruptive. She also said that it fell to her to ensure that he attended to homework that might otherwise have been done on these Tuesday evenings.
The mother was not convincing about her ongoing indecision about paying her share of a camp for L. She said that she has not made up her mind whether she could afford this activity. She expressed concern that the father had completed the forms for L’s attendance at this camp in November 2007 without consulting her.
During cross-examination the mother confirmed that she works on a casual basis as a nurse in the Northern Territory, earning approximately $36,000 to $38,000 per annum. She conceded that she would get approximately the same for employment in the specialist areas of nursing in the Melbourne/Geelong area.
During cross-examination the mother agreed that if the children were to travel between Melbourne and Darwin by air that they could do so accompanied by an appropriate airline attendant.
The wife proposed that the children reside with the father from Friday evening until Wednesday morning each second week. This would amount to five nights a fortnight. She said she did not want to agree to equal time because she said the father’s work arrangements interfere with his capacity to provide care for them. She maintained she has been the primary care giver for the children and that the children are settled in this arrangement.
During cross-examination the mother admitted having discussions with the children about the proposed move to the Geelong area, including discussing with B that the cooler weather might improve his eczema and that there may be more opportunities in the Geelong area and at the M High School. The mother specifically denied telling the children what to say to Mr H and asserted that what they told the Family Consultant were their own views about the plans to move.
The mother supported the concept that it was important for the children to get to know their sibling T and spend time with him, but said that it was “not a major issue”.
When cross-examined about the allegation of assaulting Ms R at the dance hall incident she said that she was not angry but was “more hurt”. She denied that she went right up to Ms R’s face. She said that she stood by her but not close to her and spoke very loudly.

When cross-examined about the occasions when she was alleged to have prevented the father from seeing the children she said that the only time when he did not see them was when he was away shortly after the separation. Since then she said he had seen them every second weekend on the Saturday and Sunday.
I accept her evidence in this regard and prefer her evidence to that of the father.
She admitted that on one occasion she had not agreed to him having the children overnight. She said that it was shortly after the separation when the father refused to say where he was living and would not give her his telephone number. She said that when she knew his address and telephone number she felt comfortable with the children spending time with him overnight. She conceded that she may have stipulated shortly after the separation that Ms R not be present when the children spent time with the father.
The father proposed in his draft orders that if the parties could not agree upon the schooling for the children, then orders should provide that the father should choose which school B attended and the mother should choose which school L attended. The mother did not support this proposal. She said that she was seeking orders that require the parties to discuss and agree about the schools for the children. She confirmed that she had not enrolled either of the children in any school in the Geelong area, but had researched the proposals for the children’s school. She said that if the father proposed schools that he considered more suitable she would look at his proposals. She emphasised that parties should agree on the schools for both children. She had not received any requests from the father seeking information about the schools she proposed, but believed that the father had already contacted the M High School. In re-examination the mother said that she had never been told by the father that he was unhappy with her choice of M High School as a school for the children to attend if they moved to the Geelong area nor had he asked her to look at any other proposed schools.
During re-examination the mother confirmed that if the father visited Melbourne at a time before he moved from the Northern Territory she would agree to him spending time with the children.
The wife confirmed that she would reside with her sister in accommodation in the Geelong area only for so long as it took her to purchase a new home.
The affidavits of the mother’s father and the mother’s sister were received without the necessity for cross-examination. Those affidavits set out the support which the mother’s family proposed to give to her and the children.
The Family Consultant’s report was received and both counsel cross-examined him.
During cross-examination, Mr H substantially confirmed the contents of his report. He confirmed that he discussed with the children their relationship with the extended family. He referred to the warm attachments the children had for the extended family.
During his oral evidence, Mr H agreed that the ideal situation would be for the children to have face to face time with their father and it would definitely be better if the conflict between the parents subsided.
Mr H agreed to the suggestion that it would be ideal for the father to leave the Northern Territory immediately and resettle in the Geelong area or an area near the children. When questioned about a delay for two years for the relocation, Mr H said that this “simply draws out the issues for everyone” and would continue to perpetuate the unsatisfactory situation.
Mr H said that waiting until the end of 2009 was a substantial period of time, particularly as B is not coping at school. The delay may compound B’s problems.
He continued to maintain the recommendations in his report which were that once the children, the mother and father had moved to the Geelong area the children should spend equal time with each parent. However initially he submitted that until the relocation took place in December 2007 the current orders should be maintained as this would limit the number of changes for the children.
When cross-examined by counsel for the father, Mr H said that the knowledge that the father was now planning to move at the end of 2009 and would agree to the children and mother moving then, did not change his recommendations.
He did accept that there might be possible benefits of a change to the current arrangements which would allow the children to spend after school on Thursday to before school on Tuesday each second weekend with the father (pending any move in December 2007 to Victoria).
When asked about the difficult relationship between the parents, their different parenting styles and the impact this would have upon any benefits of equal shared time, Mr H conceded that the differences reflected the differences in personalities of the mother and the father, but he did not believe that these differences extended to the care of the children.
Mr H acknowledged that it was more difficult for B to make the transition between the households.
Mr H gave evidence that when the father had reported to him that the mother had “impeded” contact between him and the children after the separation he had not been told by the father that during April and May 2006 the father had not actually been in the Northern Territory.
Mr H confirmed that L spoke positively about the suggestion that she spend equal time with her mother and father if her father moved to the Geelong area. He also confirmed that B was less supportive and still thought the arrangement would be disruptive. Mr H attributed this in part to the possibility that B was genuinely resistant to changes.
Mr H asserted that the children had a very well established relationship with their father which could be maintained even over a distance.
Mr H agreed that it appeared that the children had had discussions with their mother, but when asked whether an explanation for the children’s expressed wish to move to the Geelong area was merely to placate their mother, he asserted that this might be part of the reason, but that they had had their “own reasons which appeared genuine and not coached”. He agreed that there appeared to be no unfair influence upon the children when they were expressing their views.
At the conclusion of the cross-examination I asked Mr H some questions.
That part of the evidence is as follows:
“HER HONOUR: Mr [H], the question about the disruptions for the children of any move, what, if any, emotional impact on the children would they have already experienced, with the breakdown of the parents’ relationship, and shortly thereafter the father commencing to live with another woman, then shortly after that a new sibling arriving?---Well, certainly for these children there’s been a number of major adjustments within a relatively short period of time.
And in relation to the concern about the disruptions, or the experience of [B] when he changed schools, would it make any difference if the previous changes were ones that [B] didn’t have any input into, but he is saying he wants to change schools this time?---Yes, I think there is a difference there. I think it is a situation where he perhaps perceives himself as having a bit more control over the situation. He has a view that he can express, and people are listening to that view. Perhaps also the fact that he is older, hopefully he may be a little bit more capable of dealing with some of the issues that arise.
Well, in that regard, he’s now - in December, this December, he will be 14, and in December 2009 he will be 16?---Yes.
And so, starting afresh in a new school, the difference between a young boy doing that at aged 14 and aged 16, is there an advantage to [B] of him starting, or having the change earlier, so that he changes at age 14, rather than age 16?---I think there is some advantage to that. It gives him an opportunity to establish a peer network and develop friendships at an earlier age, which possibly can be more difficult to do when coming into school at year 10 or 11. Also I think that the continuance of the current situation just prolongs the anxiety for everybody, and I think that will impact upon him.
At [B]’s age will the impact of hormones have any part to play?---I certainly believe it would, your Honour.
And - for the benefit of [B] would it be sooner better, rather than later?
---I think sooner rather than later would be my preference.
And in relation to the – [L] - she is 11 now, and will be 13 in December 2009, do the factors in relation to benefits or detriments for her also apply?---I think they do. She indicated to me in looking over my notes, that she was not wanting to commence middle school in [the Northern Territory] next year, and knew that was one of the reasons why she wanted to relocate, and I think for her at this stage of moving into High School, I think it is probably the ideal time to make that move rather than waiting until other kids have had that opportunity to settle in and then for her to come along a year later.
I think you have probably given some evidence about this, but if the children have been consulted about this, and obviously gone to an interview with you, they are aware of the litigation, are they not?---They definitely are, yes.
And they are going to have to be told by their parents what the results are when I deliver my reasons?---They will be, yes.
If they’re told that they are allowed to move but it is going to be delayed until the end of 2009, what impact will that have on their current situation?---I think they would be disappointed. I think that they will feel that their views have not been listened to. At the same time, though, I think they would accept it, and make the most of that outcome.
Would there be any risk that they would see their lives as having been put on hold for two years?---That is a possibility. That may well be that they feel they are marking time until they can go.
You talked about the proximity of the mother’s and father’s residence in the view from practical situation, is it the - where there’s a week about or a substantial time, whether it is seven out of 14, or five out of 14 days, is there a distinct advantage for the homes of the children, because they have two homes, the homes of the children being in the same locality so that they access the same community facilities (inaudible), they don’t have to have two sets of friends because they live in two different areas?---Yes, that is what I was emphasising in my report about the households being proximal to one another.
And obviously to their schools?---And to their school as well, yes.”

Assessment of the Evidence and Findings on Main Issues

Mr H conducted the interviews, prepared his report and gave his evidence in a well-qualified professional way. His interviews and reports concerning the children’s wishes provide the Court with reliable evidence about their views.
I reject the father’s suggestion that the mother did not provide him with regular time with the children for some months after the separation. I accept the mother’s version that he was away for most of April and May 2006, that she provided him with regular alternate weekend contact shortly after the separation, and she refused him overnight contact when he had not given her an address and telephone number.
I find that the father was well aware of the mother’s wish to move from the Northern Territory to the Melbourne/Geelong area to be near her family and that he was well aware of this prior to the separation of the parties. He was clearly put on notice by early September 2006 that the mother specifically wished to move with the children to the Geelong area. Nonetheless, the evidence of the father is that he purchased a home with Ms R in September 2006, in July 2007 resigned from the Defence Force and in mid August 2007 took up permanent employment in the Northern Territory.
I accept the evidence of the father, which was not contested by the mother, that it is possible that at least in the short term the father’s income will be reduced if he moves from the Northern Territory to the Melbourne/Geelong area without obtaining employment in his specialised field.
I am satisfied from the evidence of the mother that she has appropriate reasons, including her belief in benefits for the children in their education, social relationships and opportunities for moving to the Geelong area.
I am also satisfied that her desire to move is not an indication that she is unwilling to maintain and encourage a meaningful relationship between the children and their father.
I am satisfied that she has the capacity and willingness to encourage an appropriate ongoing relationship between each of the children and their father.
Whilst there was an issue about the depth and quality of the friendships each of the children had made in the Northern Territory, there was no significant evidence which suggests that any of the relationships that the children have with other children was a significant factor which should influence the decision concerning their future welfare.
The parents do not have good capacity to communicate with each other. Hopefully the passage of time since the separation will encourage an increase in the ability of the parents to communicate about the children’s needs.

Consideration of Children’s Best Interests taking into account provision of Sections 60CC and 65DAA

Both parties seek that the parents have equal shared parental responsibility. The Court must therefore consider whether the children spending equal time with each parent would be in their best interests and reasonably practicable. The Court is also required to consider whether the children spending substantial and significant time would be in their best interests and reasonably practicable.
In that context and bearing in mind the provisions of Sections 60B and 65DAA, I turn to consider each of the matters in Section 60CC
Primary Considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents.
The evidence of each of the parties and the Family Consultant indicate that the children will benefit by maintaining a meaningful relationship with each of the parents.
The evidence of each of the parties is that, whether or not the children move to the Geelong area immediately, or at the end of 2009, arrangements can be made to maintain a meaningful relationship between the children and each of the parents. This can be maintained by telephone and internet communications and visits by either the parent or children travelling.
In the context of equal shared time or substantial and significant time any move by the children from the Northern Territory to the Geelong area would prevent equal shared time or substantial and significant time if the father did not move promptly to the Geelong area. His evidence however was that he would give this serious consideration. I accept however that his evidence indicated that he would also take into account financial considerations before determining when he might move to be closer to the children.
Any order which required the wife and the children to remain in the Northern Territory until the end of 2009 (when the father was prepared to move) is therefore more likely to provide an opportunity for the children to spend equal time with both parents or substantial and significant time with both parents.
(b)The need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
There was no evidence to suggest that either child had been subjected to abuse, neglect or family violence.
No emphasis was placed on this factor by either of the parties or the Family Consultant.
Additional Considerations
(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 wishes.
The Family Consultant, Mr H, accepted that the children expressed clear views in favour of moving with the mother to the Geelong area. He took into account the possibility that the children were being influenced by the mother’s wishes. His conclusion clearly indicates that the children had also formed their own views and that they had a rational, sound basis for forming those views.
I take into account the evidence of the father which also acknowledged that the children would be truthful about their wishes in those circumstances.
I accept the evidence of the mother concerning the children’s various interests and the difficulties which B in particular had experienced at school. I am satisfied that the children’s views are soundly based. B is now 13 (nearly 14) and L is aged 11. In view of their ages and their circumstances their views should be given weight.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents;
The evidence indicates that both children have a good sound relationship with each of the parents. The mother has been the primary caregiver. The report of Mr H indicates the close relationship both children have with each of the parents.
(ii)other persons (including any grandparent or other relative of the child)
The mother emphasised that on relocating to the Geelong area the children would be able to continue and improve their good relationship with her extended family. In the Family Report, Mr H, referred to the children speaking about the extended family in Melbourne. This was one of the factors underlying their desire to move to the Geelong/Melbourne area.
In the Family Report both children mention Ms R but little emphasis is placed in the interviews with the children upon their relationship with Ms R or their sibling T.
I accept that the age difference between T, B and L and any significant distance between homes which prevents significant and substantial time being spent living in the same household as T, would affect the development of their relationship with him. This would be temporary if the father were to move with Ms R and T to the Geelong area at the end of 2009 (as he plans).
I am satisfied that the nature of the relationship between the children and each of the parents is a strong and loving relationship which will be able to be maintained regardless of whether the children remain in the Northern Territory, or move to the Geelong area immediately, or at the end of 2009.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
I am satisfied that both parents are willing and able to facilitate and encourage a close and continuing relationship between the children and the other parent.
I accept the mother’s evidence about the arrangements made immediately after separation for the father to spend time with the children as soon as appropriate arrangements could be made. I am also satisfied that the mother’s wish to relocate to the Geelong area is a genuine wish based on sensible considerations and not an indication that she is unwilling to maintain a relationship between the children and their father.
(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.
Clearly any move from the Northern Territory to the Geelong area which takes place before the father is prepared to move will have an effect upon the time the children can spend with the father (and Ms R and T). The move to the Geelong area would enable the children to spend more time with the extended family of both their father and mother. The proposal of the father to move to the Geelong area at the end of 2009 means that any separation for the children from their father, Ms R and T would be a temporary one.

The evidence indicates that such a separation is not likely to have a significant impact upon the strong and close bond between the father and the children. Suitable arrangements can be made to maintain a meaningful relationship whether or not the children move to the Geelong area.
(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
If the children remained in the Northern Territory until the father was willing to move at the end of December 2009 or if the father moved immediately upon the children relocating to the Geelong area, the practical difficulty and expense would not be a consideration. If however the children were to move to the Geelong area and the father did not move until December 2009 then for a period of approximately two years there would be practical considerations and expense to be taken into account arranging for the children to travel between the Northern Territory and the Geelong area or the father travelling between the Northern Territory and the Geelong area. Taking into account the income of the father any short-term expense is not a significant factor.
I accept the evidence of the mother that with appropriate arrangements the children could travel by air “unaccompanied” between Melbourne and Darwin with suitable arrangements being made by each parent for the children to be collected and returned by car to and from the appropriate airports.
(f) the capacity of:
(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;
to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied that both parents can provide for the children’s needs whether they reside in the Geelong area or the Northern Territory.
(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;
I accept the mother’s evidence that the children considered that the Geelong area will provide more opportunities for the children to pursue their particular social and extra-curricular activities. The children’s background has been one of moving from different areas and different schools. I accept the evidence of the Family Consultant that L and B are enthusiastic about the opportunities which are offered by the proposed move to the Geelong area.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Each of the parents have displayed an appropriate attitude to the children and their responsibilities.
(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;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
Not relevant.
(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;
In most cases it is preferable to make an order which would be least likely to lead to further proceedings concerning the children. This is not a significant factor in this matter as the father has indicated a willingness to move at the end of 2009 to allow the children and the wife to reside in the Geelong area.
One issue is the parental responsibility and decision making concerning the children’s schooling. I am not satisfied that it is in the children’s best interest to divide up the parental responsibility about the choice of school as the father suggests (by giving him the decision in relation to B and the mother the decision in relation to L). I accept the evidence of the mother that she has made the father aware of the proposed school and he did not express concern about the choice until the final hearing of this matter.
The parents have agreed to equal shared parental responsibilities. That means that both parents have a duty to negotiate and work together about making decisions concerning the children’s welfare, including which schools would be best for them to attend. I am not satisfied that it is in the children’s best interests to relieve the parents now of their duty and responsibility to make joint decisions at this stage. Hopefully after the conclusion of the litigation the parents will be able to communicate in a manner which focuses upon the children’s needs, lifestyle and preferences.

Conclusion

The mother has set out understandable reasons for her desire to move to the Geelong area. The father agrees to the proposed move but seeks to delay it until the end of 2009. The evidence of the Family Consultant strongly emphasised the disadvantages for the children of a delay in moving. His evidence was unequivocal and soundly based. I accept his evidence.
The benefits to the children of moving from the Northern Territory to the Geelong area are acknowledged by the father to the extent that he proposes to move at the end of 2009. The best interests of the children however suggest that such a move should take place now rather than later. Any disadvantage to the children of less face to face contact with the father for a period of about two years are outweighed by the benefits of recognising the significant views expressed by the children.
Taking into account that the decision must be made on the basis that the best interests of the children are the paramount consideration and weighing carefully the factors in Section 60CC, (particularly in the context of Section 65DAA), I am satisfied that it is in the best interests of B and L that the mother be permitted to move with the children to the Geelong area at the conclusion of school in December this year or so soon thereafter as she can make appropriate practical arrangements.
The evidence of the Family Consultant, combined with the evidence from the mother and the father indicate that it would also be in the best interests of the children that until the move that less handovers take place or the current orders continue. In view of the short time between now and the end of school term it will be less disruptive and therefore better for the children if the current orders continue until the conclusion of school in December 2007.
The father indicated a possibility that if the order was made permitting the children to move he might also move before 2009. He did however say that he would not be able to move for some time because of his commitments to his employment and because of arrangements to prepare his home for sale.
I therefore propose to make orders which provide for the children to spend some time with the father in the Northern Territory during school holidays until such time as the father moves to the Geelong area, ensuring at the same time that the children still have an opportunity to spend some of the holiday time with their mother and extended family in the Geelong area.
The evidence of the Family Consultant, Mr H, recommended that if the father moved to the Geelong area in close proximity to the children’s school and the mother’s home, then an arrangement for the children to spend equal time with each parent would be in the children’s best interests. Such an arrangement, Mr H contended, would be in accordance with L’s wishes. B was less positive; however Mr H’s view was that equal shared time would be in the children’s best interests. His view was conditional upon the father residing in an area close to the children’s school and close to the home of the mother so that friendships, travel and extra-curricular activities could be organised without disruption.
One of the factors which suggests that equal shared time might not be a suitable arrangement is the inability of the parents to communicate. Another is differences in attitudes to care arrangements and the upbringing of children.
In this matter there have been difficulties in the parties communicating in the past.
One significant difference between the parties is their attitude towards education. The father and Ms R have expressed no confidence in the available education systems. At this stage the father and Ms R propose to provide home schooling for T and any other children they may have in the future.
During the evidence the wife proposed that the children reside with the father from Friday evening until Wednesday morning each second week. This is five nights a fortnight. She opposed equal time because she said the father’s work commitments interfered with his capacity to provide care for them. I am satisfied that the father and Ms R will be able to make appropriate arrangements (if they move to the Geelong area) to ensure that the children are properly supervised and arrangements made for their attendance at their extra-curricular and educational activities.
I am satisfied therefore that it is in the best interests of the children that the children spend equal time with each of their parents if and when the father moves to reside in an area close to the children’s school and the mother’s home.

I certify that the preceding one hundred and seventy seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate

Date: 21 November 2007