MAS and SLC
[2007] FMCAfam 28
•25 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAS & SLC | [2007] FMCAfam 28 |
| FAMILY LAW – Parenting – relocation – mother seeking to relocate child aged 8 from Sydney to Melbourne – accepted academic position in Melbourne without consulting father – father opposes application – child currently spending time with father on alternate weekends and holidays – application to relocate refused. |
| Family Law Act 1975 |
| A & A: Relocation Approach (2000) FLC 93-035 AMS & AIF; AIF & AMS (1999) FLC 92-852 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 Bolitho & Cohen (2005) FLC 93-224 H & W (1995) FLC 92-598 R & R; Children’s Wishes (2000) FLC 93-000 U v U (2002) 211 CLR 238 W & R (2006) 35 Fam LR 608 |
| Applicant: | MAS |
| Respondent: | SLC |
| File Number: | PAM 424 of 2000 |
| Judgment of: | Sexton FM |
| Hearing dates: | 15 and 16 January 2007 |
| Date of Last Submission: | 16 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Rees |
| Solicitors for the Applicant: | Watson & Watson Solicitors |
| Counsel for the Respondent: | Mr P Livingstone |
| Solicitors for the Respondent: | Champion Legal |
ORDERS:
All previous parenting orders be discharged.
The parties have equal shared parental responsibility in relation to the child, John born 21 September 1998 [“John”].
The mother be restrained from changing John’s place of residence outside the Sydney metropolitan area.
John live with the mother.
John spend time with the father as follows:
(a)From 10.00a.m. on Friday 26 January 2007 until 5.00p.m. on Sunday 28 January 2007;
During school terms
(b)From after school or after-school care Friday until 7.00p.m. on Sunday night and each alternate weekend thereafter commencing Friday 9th February 2007;
(c)At other times as agreed between the parties;
During Christmas school holidays
(d)For one half of the Christmas school holiday period, being the second half in years ending in an odd number concluding at 5.00p.m. on the last Sunday of the Christmas school holiday period and the first half in years ending in an even number commencing at 10.00a.m. on the first Saturday of the Christmas school holiday period provided that John spend Boxing Day from 9.00a.m. until 7.00p.m. with the parent with whom he does not spend the first half of the Christmas school holiday period;
(e)For the purpose of Order 5(d), the first day of the Christmas school holiday period shall be the last school day of the year and the last day of the Christmas school holiday period shall be the last full day of the holidays including any pupil free days;
(f)For the purpose of this Order, should there be an unequal number of nights in any Christmas school holiday period, the additional night shall be added to the first half of each relevant Christmas school holiday period;
During school holidays at the end of Terms 1, 2 and 3
(g)From the first Saturday of the school holiday period at 10.00a.m. until the second Tuesday of the school holiday period at 10.00a.m for one out of three of the short school holiday periods each year, being Term 3 in 2007 and all years ending in an odd number and Term 1 in 2008 and all years ending in an even number;
(h)From the first Saturday of the school holiday period at 10.00a.m. until the second Sunday of the school holiday period at 10.00a.m. during Terms 1 and 2 in 2007 and in years ending in an odd number and Terms 2 and 3 in 2008 and in years ending in an even number; and
(i)At other times by agreement between the parties.
For the purpose of changeover, the father collect John from school/ after-school care or the mother’s residence at the commencement of the times John is to spend with him and the mother collect John from the father’s residence at the conclusion of those times.
Each party keep the other informed about any communication received by that party from the school as soon as practicable after receipt.
Each party facilitate John’s reasonable communication with the other by telephone or other electronic means.
Each party keep the other advised of his/her home address, email, mobile and landline telephone details.
Each party keep the other advised of any significant matter relating to John’s health.
This order be sufficient authority to provide the father with John’s school reports, dates for sports days, parent/teacher nights, concerts and other events and/or any other information from the school John attends and each party be at liberty to attend any and all activities to which parents are invited to attend.
Each party keep the other informed of any and all extracurricular activities engaged in by John and each party authorise the other to communicate with and obtain copies of all relevant information concerning such extracurricular activities from the organisers of same, and each party have liberty to attend any and all extracurricular activities in which John may be involved.
Neither party make derogatory comments about the other party or members of the other party’s family to John or to any person in the presence or hearing of John and each party ensure their only comments about the other party or members of the other party’s family in the presence or hearing of John are positive.
ORDERS by consent
Pursuant to section 13C of the Family Law Act 1975 the parties must within 7 days contact Relationships Australia on 1300 364 277 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for child-inclusive mediation.
The parties must attend the appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable and Relationships Australia nominates counselling, mediation or a program to attend, the parties must attend (as Relationships Australia directs) as soon as practicable.
The parties do all acts and things and sign all documents necessary to apply for a passport to be issued for the child, John, born 21 September 1998 as soon as possible and in any event within 28 days.
The passport, once issued, shall be in the mother’s possession and in the event the father seeks to travel with John pursuant to these Orders, the mother shall, within 7 days notice of such travel being given, make John’s passport available to the father for the duration of the travel.
The mother and the father shall not remove John from the Commonwealth of Australia without the other parent’s written consent, such consent not to be unreasonably withheld.
IT IS NOTED that the father and the mother will each be entitled to receive the following information, in writing, prior to any proposed travel and at least 14 days prior thereto:
(a)The destination;
(b)The departure date;
(c)The return date; and
(d)Contact details including telephone number, address and facsimile number.
In the event the father or the mother opposes such travel upon receiving the above written information, he or she must set out in writing and provide to the other parent his or her written reasons.
The parties be granted liberty to restore this matter to the list in relation to the implementation of Orders (17) to (21) on 7 days notice and the matter be listed before Federal Magistrate Sexton if available and if Federal Magistrate Sexton is sitting in the Sydney or Parramatta Registries of the Court.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 424 of 2000
| MAS |
Applicant
And
| SLC |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for John [not his real name] aged 8 years. The mother has accepted a tenured academic appointment in Melbourne that she commenced in early January 2007 and she wants John to live with her and her partner in Melbourne. The father wants John to remain living with the mother in Sydney so that he can continue to spend regular time with him – the current arrangement. The parties separated in 1999 when John was 5 months old. John has always lived with the mother. The mother has been in a relationship with Mr Geoff Brown [not his real name] for several years and they have decided to live together full time. The father remarried in 2001 and he and his wife, Ms Jessica Walker [not her real name], have two daughters Alice aged nearly 3 and Lauren aged 18 months [not their real names], John’s half sisters. The mother’s parents and sister, the father’s two brothers and their children, Ms Jessica Walker’s parents, her siblings and their children, Mr Brown’s parents, two brothers and their children all live in Sydney and John spends regular time with them. The mother, Mr Brown and the father and his wife own real estate in Sydney. Mr Brown has an aunt, uncle and cousin living in Melbourne but otherwise there is no evidence of other family or friendship connections of either party in Melbourne.
The mother accepted an academic position at a university in Melbourne on 3 June 2006. She advised the father in September 2006 by letter that she had an “opportunity in Melbourne” without telling him she had accepted the position. In September 2006 she deposes to having “been offered a position with a University in Melbourne”, not to having accepted the offer. She formally resigned her position from a North Sydney school in September 2006 effective from 31 December 2006. She leased a rental property in Melbourne in late December 2006 and commenced her employment at the University in Melbourne on 2 January 2007.
The mother says she wants to relocate to Melbourne because the position will assist her career and provide her with more time with John. She worked at a university in Sydney as a lecturer for 2 years before taking a senior executive position at the North Sydney School in early 2005. She deposes to the Education Faculty at the University in Melbourne as being one of the most highly regarded Faculties of Education of any university within Australia or overseas and she believes she will in time advance to the role of Senior Lecturer and/or Associate Professor. She says the position will also allow her the opportunity to consolidate her PhD studies. The mother deposes to being unsuccessful in her applications for two Sydney private schools and to a belief that she is likely to obtain such a position only if she spends time working outside Sydney. There is no evidence that the mother has applied for any other positions in Sydney. Mr Brown tells the Family Reporter, he views the mother’s employment at the University in Melbourne as “a once in a lifetime opportunity” that offers her financial security and job satisfaction. In cross-examination the mother agrees with Ms Rees, the father’s counsel, that she may move from Melbourne, even further away from Sydney in the future. She says she may never return to live in Sydney. In final submissions, Mr Livingstone, the mother’s counsel, submits “these parties have been at war for years”; the mother needs “a fresh start” with her “new family”; she “needs to turn a new page”. For reasons later set out, on balance I accept Mr Livingstone’s submissions as a significant reason for the mother’s wish to relocate.
The mother says the move will not impact on John’s relationship with his father. She tells the family reporter that she thinks it might improve the father and John’s relationship “because they’d have to work harder [at it].” The father believes John’s relationship with him and with his half sisters will be diminished if John moves to Melbourne because of the practical difficulties of John spending regular face to face time with them.
It is common ground that the parties communicate poorly. They do not trust each other and are unable to cooperate and make joint decisions for John. Despite attending a parenting after separation course in 2002, by order of the Court, their communication has not improved. They communicate almost exclusively through a communication book[1] which John carries in his bag between them. It is plain from a reading of the communication books from 2002 to the present that there is a continuing struggle between the mother and the father. There also appears to be an unresolved issue between the mother and the father’s wife. Ms Walker was not prepared to have Alice and Lauren in the same space as the mother for the family report interviews for fear of how the mother would react to them. In the family reporter’s opinion[2]:
“the parents need to address their communication and mistrust issues with some urgency. If they do not, John might continue to feel that he is being forced to choose between them, and might actually do so in order to alleviate his distress and discomfort at being in this position.”
Mr Hibbard is very concerned the parties were unable to discuss the mother’s proposed move when the mother first contemplated the move. He is equally critical of both parties for failing to deal with their communication difficulties over such a long period: “The parents are not addressing their communication problems and they really have to.”
[1] Exhibit 4.
[2] Page 12 of the Family Report.
The mother is 38 and the father 39. The father works full time as a science teacher at a South Sydney school. His wife works as a teacher at the same school, part-time. The mother was until December 2006 working as an Executive at the North Sydney School and the mother’s partner, Mr Brown has spent the last 16 years teaching at a Sydney Catholic School. Mr Brown is currently on long service leave. The mother was living with John in north-west Sydney until December 2006 when she leased a home in Melbourne. The father and his family live in South-West Sydney.
These proceedings are the third time the parties have litigated about parenting issues. The first was in 2000 when the father sought orders for John to spend time with him as he was unable to reach agreement with the mother about parenting arrangements. The Court ordered time and the parties later varied those arrangements by consent. In October 2001 John started to spend alternate weekends with the father. The second proceedings were in 2002 when the father sought orders that John spend additional time with him, to include school holidays. After a defended hearing, the Court ordered that John spend alternate weekends and half school holidays with the father. The parties have since complied with the 2002 Orders. Each party agrees that for the most part, the current arrangements have worked well for John.
The mother proposes that when living in Melbourne, John spend time with the father in Sydney for one weekend in any month in which school holidays do not occur, as well as half the Victorian school holidays as far as they coincide with school holidays in New South Wales. She proposes the father travel to Melbourne to spend additional time with John. She proposes reasonable electronic communication. The mother proposes meeting the costs of John’s travel to and from Sydney. If the father moves to Melbourne, the mother proposes John spend alternate weekends and half school holidays with the father. In the event the Court does not permit relocation, the mother proposes John spend alternate weekends and half school holidays with the father and communicate with the father once a week by telephone.
At the commencement of the hearing, the father proposed that John live with the mother in Sydney and spend each alternate weekend from after school Friday until Sunday night and half school holidays with him. At the end of the hearing, on the basis of the evidence of the Family Reporter, the father proposed that John spend 10 days with him in two out of the three of the short school holiday periods each year. If the mother is permitted to live with John in Melbourne, the father proposes John spend time with him as often as practicable as agreed between the parties. His counsel submits the mother’s proposal in this regard is probably realistic. If the mother chooses to live in Melbourne, the father proposes that John live with him and spends time with the mother for 3 out of 4 weekends and for half school holidays, including one whole school holiday period with each party.
In Mr Hibbard’s view, the mother has not thought through the implications for John of her proposed move to Melbourne. He recommends John remain living with the mother in Sydney, but if the mother stays in Melbourne, that John live with his father and spend as much time with the mother as practicable.
Legal principles
His Honour Justice Kirby in the High Court decision of AMS & AIF; AIF & AMS (1999) FLC 92-852 said (at paragraph 142):
…each [relocation] case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression…
Parenting orders are governed by Part VII of the Family Law Act 1975. When making a parenting order, section 61DA of the Family Law Act requires the court to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for their welfare. Section 65DAC provides that all decisions about major long term issues be made jointly by those who share parental responsibility. Major long term issues are defined in section 4 of the Act as education, religious and cultural, health, name and significant changes in living arrangements. In this case, the parties agreed that the presumption applies and a final order was made by consent on 27 November 2006 that the parties have equal shared parental responsibility for John. The application of this presumption triggers the application of section 65DAA (1) which requires the court to:
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 for (including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides that if the court does not make an order for equal time, the court must consider whether the child spending significant and substantial time with each parent would be in the best interests of the child and whether such an arrangement is reasonably practicable. Substantial and significant time and reasonable practicality are defined in sections 65DAA(3) and (5). Neither party in this case seeks an order for equal time or for John to spend significant and substantial time with the other party whether John is living in Sydney or in Melbourne. Each party concedes, and I agree, that such orders would be impractical given the parties’ residential locations and circumstances.
Section 60CA provides that the child’s best interests are the paramount consideration when considering particular parenting orders and to determine the child’s best interests the court must consider the primary matters set out in section 60CC(2) and the additional matters set out in section 60CC(3). Section 60CC(4) requires that the court consider the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Section 60CC(4A) provides that if the parties have separated, the Court must have particular regard to events that have happened, and circumstances that have existed, since the separation occurred. Section 65D provides, subject to the presumption of equal shared parental responsibility, that the court may make such parenting order as it thinks proper.
As the Full Court held in B and B: Family Law Reform Act 1995 (1997) FLC 92-755, relocation cases are not a separate category within the Act to be determined by their own principles and rules. Each is a case under Part VII relating to the best interests of the children. The Full Court in A & A: Relocation Approach (2000) FLC 93-035 stated the guiding principles to be applied in relocation cases[3]:
a)The best interests of the child are the paramount consideration but not the sole consideration;
b)A court cannot require the applicant to demonstrate “compelling reasons” for the relocation;
c)The court must evaluate the competing proposals presented and weigh up the advantages and disadvantages of each for the child’s best interests;
d)This should not be done in a way that separates the issue of relocation from that of residence;
e)The court must weigh the evidence as to how each proposal would hold advantages and disadvantages for the child’s best interests; and
f)The court must refer to the principles underlying the objects of the parenting provisions of the Family Law Act and the relationship between those principles and the factors which must be considered when deciding what orders are in a child’s best interests.
[3] As summarised in the Family Law Council, Discussion Paper: Relocation (Feb. 2006), Commonwealth of Australia, pp.10-11.
The Full Court in A & A then set out a 3-step summary of the correct approach to be applied in cases involving a proposal to relocate the residence of a child[4]:
a)Identify the competing proposals of the parties;
b)Explain the advantages and disadvantages of each proposal by examining the section 68F(2) factors (now the section 60CC factors) with regard to the objects of the parenting provisions of the Act, which includes an evaluation of the “reasons for relocation as they bear upon the child’s best interests” against other factors; and
c)Explain why one proposal is to be preferred having regard to the best interests of the child as the paramount, but not sole consideration.
[4] Ibid, pp10-12.
The High Court in U v U (2002) 211 CLR 238 modified the approach in A & A when Gummow and Callinan JJ said:
We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question… the objective is always to achieve the child’s best interests.
In Bolitho & Cohen (2005) FLC 93-224 the Full Court said:
We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A & A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant section 68F(2)factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
The competing proposals
The Court is not confined to the proposals of the parties when deciding a relocation case[5]. I invited both parties’ legal representatives to submit as to whether the court should consider options other than those put by each party. At the outset of the hearing counsel for each party agreed it was open to the Court to consider 4 options:
i)John living with the mother in Melbourne and spending time with the father at least monthly during term time in Sydney and up to half school holidays. This is the mother’s preferred position.
ii)John living with the mother in Sydney and spending time with the father on at least alternate weekends and half school holidays. This is the father’s preferred position.
iii)John living with the mother in Melbourne, the father also living in Melbourne and John spending time with the father on at least alternate weekends and for half school holidays.
iv)John living with the father in Sydney, the mother living in Melbourne and John spending as much time as practicable with the mother.
[5] AMS & AIF; AIF & AMS (1999) FLC 92-852 and U v U (2002) FLC 93-112
The mother gave evidence as to the commitment required of her at the University in Melbourne. She will start teaching at the end of February, break in approximately June/July and teach again from August/ September until mid October when the students break for exams. She will do the majority of her work with post-graduate students online. She will be at the University in Melbourne 4 days a week. As a result of these commitments, during the hearing, I raised a fifth option for the parties to consider. This would involve the mother living in Sydney, working in her academic role at the University in Melbourne as often as possible from Sydney and commuting to Melbourne when necessary. John would live with the mother when she was in Sydney and with the father when the mother was in Melbourne. The mother considered this option overnight and then said the logistical difficulties this proposal presented outweighed any benefits it might offer.
In relation to option (iii), the father and his wife said they would not relocate to Melbourne if the Court permits the mother to relocate with John. Ms Walker has close family in Sydney with whom she, the father and their children spend a lot of time. The father and his wife own their own home in Sydney. Both have employment in Sydney. I accept option (iii) is not realistic given the father’s family commitments.
In relation to option (iv) the father and his wife concede that this option would be very difficult for John given he has never lived away from the mother. Mr Hibbard says any disruption to John’s very strong attachment to the mother “would be extremely distressing for him.” Although the mother told Mr Hibbard at interview she would have to think about what to do if not permitted to take John to live in Melbourne: “I just can’t decide what to do”, in oral evidence the mother stated her position clearly that if the Court does not permit John to move to Melbourne with her, she will live in Sydney so John can remain living with her.
Both counsel submitted that the only realistic options for the court to consider are therefore (i) and (ii), both of which provide for John to continue to live with his mother, to whom he is so strongly bonded.
I agree with counsel.Evidence in relation to Option (i) — The mother, Mr Brown and John would live together in metropolitan Melbourne in the home already leased by the mother and Mr Brown. The mother would continue her employment in the Faculty of Education at the University in Melbourne and earn approximately $75,000.00 a year, spending 4 days a week at the University. The mother would be in a position to spend more time with John than she has been able to in the past. Mr Brown would find alternative employment, although may, until mid-year 2007 continue with long service leave from the Sydney Catholic School. Mr Brown has relatives in Melbourne who would provide the family with support. John would attend a school and would participate in extra curricular activities, particularly sport, in the local community. He would travel by plane from Melbourne to arrive at Sydney airport at 7.45p.m. on Friday evening and leave Sydney airport at 5.00p.m. Sunday on one weekend in February, March, May, August and November 2007 and for half the Victorian school holidays to the extent they coincided with the NSW school holidays. He would spend time with the father, his step mother and half sisters in Melbourne whenever they were able to travel to Melbourne to spend time with him. He would communicate with the father and his siblings by telephone, email and web-cam twice a week. On the mother’s evidence John spent 90 overnights with the father in 2006, and would spend 60 nights with him in 2007 and 57 nights with him in 2008 on the basis of her proposal to relocate. On my count of the number of nights, it would be 58 nights in 2007 and 55 in 2008.
Evidence in relation to Option (ii) — The mother would return to live in Sydney with Mr Brown and John. She may need to find alternative employment in Sydney as she has resigned from her position at SS and may be unable to work for the University in Melbourne from Sydney. Mr Brown has not resigned from the Sydney Catholic School and, although there was no evidence about it, I expect he would be in a position to continue his employment there if he wished to do so or find other Sydney employment. John would probably change schools from the current local Public School as the mother says she would live, at least initially, in South Sydney in Mr Brown’s home. She tells the Court, if in Sydney, they would like to live in North Sydney eventually. John would spend time with his father on alternate weekends from Friday afternoon until Sunday evenings and for at least half school holidays. On the father’s proposal, John would spend 10 days with him in two out of the three short school holiday periods.
Evaluation of each proposal against the child’s best interests having regard to the principles underlying the objects of the Act.
The objects of the parenting provisions of the Family Law Act, set out in section 60B of the Act, are to ensure that the best interests of children are met by (in summary):
·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
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that a child has the right to know and be cared for by both his parents; has a right to spend time on a regular basis and communicate on a regular basis with both his parents and other people significant to his care; and parents jointly share duties and responsibilities concerning the care, welfare and development of their child.
As already noted, in deciding the arrangements that will promote the best interests of a particular child, the Court must consider the matters set out in section 60CC (2) (3) and (4) of the Act as far as relevant in the circumstances of each case. The primary considerations I must consider are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The benefit to John of having a meaningful relationship with both his parents
Each party says John’s relationship with the other is important and each has complied with Court orders which provide for John to spend time with each of them. John has been living with the mother who has provided most of his care since he was 5 months old. John has been spending alternate weekends with his father since October 2001 when he was 3 years old as well as half school holidays since he was 4.
I accept the mother’s evidence that John “enjoys the very close and special relationship he has with me. The relationship is an open and honest relationship”. I accept the unchallenged evidence of the father that he and John have a close relationship. They share an enjoyment of cooking, gardening, computer games and a passion for sport. They enjoy watching sport on television and attending cricket and football games. They practise football and cricket in the backyard. The father is involved in John’s weekend sport. He describes John sprinting from the cricket field to where he is on the boundary to tell him “about each ball that he bowls and what he was trying to accomplish.” The father scores and practises with John and his team members while they are waiting to bat. The father and John play board games together, including chess; the father is teaching John how to play some card games. Mr Brown deposes to his observations of John’s loving and enthusiastic interactions with the mother. Ms Walker makes similar observations concerning John and the father.
I have no doubt John presently enjoys a strong and meaningful relationship with both his parents.
In Mr Hibbard’s view, the strength of John’s relationship with his father may be diminished if John is living in Melbourne, given the practical difficulties associated with face to face time from such a distance, the poor quality of the parent’s interactions and their inability to cooperate to make joint decisions. Mr Hibbard’s concern was such that he recommended John live with the father if the mother moved to Melbourne. Mr Hibbard says:
At his age his ability to maintain a relationship is not as great as if he was older… that’s just to do with him developmentally…
Because there is so little communication, the ability for the parents to keep John in the centre of the relationship is lessened.
The law provides that the benefit to the children of having a meaningful relationship with both parents is a primary consideration. In the event John lives in Melbourne, he will spend time with his father on short weekends on 5 occasions in 2007 and 4 occasions in 2008. He will spend less than half his school holidays with the father because Victorian and New South Wales school holidays do not always coincide. Even though the father may travel to Melbourne occasionally, given his commitments to his wife and children in Sydney and his obligations at work, I find such trips would at best be occasional. I am satisfied in these circumstances, there is a likelihood John’s relationship with the father will become less meaningful. Mr Hibbard says this may have adverse consequences for John both in the short and long term.
I am satisfied the father’s proposal best promotes a meaningful relationship between John and both his parents. As a primary consideration I give this factor significant weight.
The need to protect John from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I deal with issues of psychological harm to John as a result of the parties’ failure to communicate and co-operate, later in these Reasons. Otherwise this is not a factor in this case.
John’s expressed views and the weight those views should be given
The Full Court in H & W (1995) FLC 92-598 at 81,947-8 and in R & R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
The mother deposes to John telling her on at least 5 recent occasions “I want to stay with you”. She deposes to conversations with John which indicate he is extremely anxious about the possibility of the mother not taking him with her to Melbourne: “Mum, tell me if something important happens” and after the Court date in November when the mother told him there was no decision yet:
John: “Well, what’s going to happen? Where am I going to be living?”
Mother: “I don’t know. We’ll just have to wait and see. You must not worry. It will be okay”.
John was vastly relieved when the mother told him they were travelling to Melbourne to look at some houses: “when are we going?, Can we pack now?” and after the trip “I am really looking forward to going to Melbourne”. I find from the mother’s reported conversations with John set out in her affidavit sworn in December 2006 and from her responses in cross-examination, that John did not know at that time, whether he would be living with the mother in Melbourne, or whether she would be going without him.
John impressed Mr Hibbard as a “happy healthy young boy” who did not want to have to choose between his parents or where he lives. John said to Mr Hibbard:
“it’s all too difficult and I just don’t want to have to make any decision”.
He also said he wanted to go to Melbourne but did not want to upset his father and would miss his father a lot. He could not conceive of not living with his mother. Mr Hibbard says John would like his family to be back together again but he said “it won’t happen and that makes me sad”.
Given the essentially neutral position John has adopted towards both his parents, I give limited weight to John’s expressed views in reaching my decision.
The nature of the relationships between John and each parent and other people important in his life
It is not in dispute that John is very strongly attached to his mother and though John very much loves his father, his attachment to his mother is stronger.
John is close to his maternal grandparents and the mother acknowledges to Mr Hibbard that a move to Melbourne might have implications for those relationships, despite her view that her parents strongly support her decision. The mother deposes to the importance of John’s maternal grandfather in John’s life and his attendance at various events for John.
There is no dispute that John enjoys a positive enjoyable relationship with Mr Brown and they have developed a strong bond. Mr Brown deposes to John calling him Geoff or “my mate” and Mr Hibbard observed a happy and relaxed relationship between them. Mr Brown has been a Community Co-ordinator at the Sydney Catholic School which has involved undertaking visits to remote areas in Australia. He has been heavily involved in coaching sport and has led pastoral immersion programmes to Cambodia, Bathurst Island and New Guinea. Mr Brown has taken an interest in and assisted John with his school work and has at times looked after him in the absence of the mother. He takes an interest in John’s sporting activities and has watched him play games and attended functions involving John’s sporting teams. He has taught John a variety of skills including chess, the basics of acoustic guitar, riding a bike and skateboard, surfing and swimming. I am left in no doubt that Mr Brown plays an important role in John’s life and intends to continue doing so.
John has a good relationship with Ms Jessica Walker. John calls Jessica “Jessie”. Ms Walker deposes to a range of activities she and John enjoy together including cooking, arts and crafts and more recently Ms Walker has taught John to French knit. John has made gifts for his mother with Ms Walker and taken them home to her. John has recently taught Ms Walker to play Rummy. John has regular time with Ms Robert’s parents, siblings, nieces and nephews and is particularly close to Sally aged 7. They seek each other out at family functions and sometimes put on shows for the family, including puppet and magic shows, making entrance tickets and posters for the performance. John enjoys playing sport in the back yard with the men and boys in that family group.
There is no issue that John is close to his half sisters, Alice and Lauren. The father deposes to Alice’s excitement when John is coming to stay and to the children’s joy at being together. The father observes John’s spontaneous requests to do things for his sisters and his pleasure at taking a role in their care. He reads to them, plays games and is teaching Alice the computer. John also gets on well with Ms Walker’ parents.
Mr Hibbard observed John relate well to both family groups.
I take into account that John will have a greater opportunity to enjoy the significant relationships in his life under the father’s proposal.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between John and the other parent
While I accept the mother has always complied with Court orders, I have doubts about the mother’s willingness to facilitate and encourage a close and continuing relationship between John and his father.
I formed the view the mother has such negative feelings towards the father and his wife, that the mother has sought to minimise her dealings and John’s dealings with the father to the least extent possible within the requirements of the Court orders. Notable examples are:a)
The mother concedes she did not include the father’s name on the Application form at the local Public School as a contact person.
I do not accept the mother’s explanation for the omission. I accept the father’s evidence that the mother did not want the father to have anything to do with the school.
b)The mother has never offered the father extra time with John when she has been unavailable to care for him. She has always asked others, usually her parents, immediate family or Mr Brown. As recently as 9 January 2007, the mother was in Melbourne when John was due to be returned to her in accordance with the Orders for Christmas holidays. She did not consider asking the father to care for John until she returned to Sydney, but instead arranged for her parents to care for him.
c)She does not have and has not asked for the father’s email address. She finds the father telephoning John every 3 days, too frequent. She concedes that John rarely calls the father and may be reacting to his knowledge that the calls are unacceptable to her.
d)She has never invited the father into her home, nor introduced him to Mr Brown. She did not inform the father when she travelled overseas in 2005 and 2006.
e)The mother blames the father for their poor communication. In her view, he is not interested in discussing relevant issues with her. She says she prefers to avoid telephone communication with him as he has hung up on her in the past and he and his wife have eavesdropped on her conversations with John. Yet, as discussed in more detail later, I find the father has had cause for concern about the mother’s communications with John while he is with the father.
The mother is critical of the father in relation to a number of issues that I find unjustified:
a)She says the father unilaterally booked John into a cricket club without reference to her. She says neither she nor the father have any connection with that specific club. While I accept neither party any longer lives near the club, the mother’s written evidence strongly suggested neither party had ever had an association with the location of the club and the father had chosen the club location at random. As noted in paragraph 71(a) I find the mother’s affidavit evidence on this issue misleading. In fact, the mother herself initially selected that club.
b)The mother says the father does not assist John with homework though agrees she does not send homework with John on weekends, apart from his school readers.
c)The mother says the father has persistently and unreasonably refused to allow her to obtain a passport for John. The father acknowledges refusing the passport for the mother to take John to London shortly after the bombings in July 2005, but says in evidence, he has no objection to John travelling with the mother overseas if the father knows about the details of the proposed travel in advance. He says, and his evidence was not challenged, that the mother has not presented him with any other specific proposal for travel. The mother admits she has been overseas on a number of occasions without telling the father. I accept this has resulted in the father lacking confidence in the mother advising him of her wish to take John overseas if John’s passport were available to her.
The mother has not had discussions with the father’s wife and does not dispute she has a poor opinion of her. The mother does not deny in the early days of the father’s marriage referring to Ms Walker as “your girly”, “your piece of fluff” or “the other person”. She concedes John understands her attitude to Ms Walker, but says she tells him that should not affect his relationship with Ms Walker. The mother, not surprisingly acknowledges that “John rarely talks to me about Ms Walker”. The father says John tells him he does not talk about his sisters with his mother. The mother says John mainly keeps activities at his father’s home private and separate from her.
Ms Jessica Walker was cross-examined about hers and the father’s admission that they eaves-dropped on conversations between the mother and John. They acknowledged doing this on 3 occasions. There was no challenge to the contents of the following conversation which took place soon after Lauren’s birth. John told his mother about Lauren’s birth:
Mother: They are not part of our family.
John did not respond.
Mother: So when was it born?
John: Tuesday.
Mother: It was obviously so important that your father didn’t bother telling you.
John remained silent.
Mother: I guess it is very noisy there now.
John: No, she doesn’t really cry and dad closes the door to my bedroom so I don’t hear them.
Mother: I wouldn’t like to be locked in the bedroom with the door closed. That’s not very nice is it? Would you? I don’t think it’s very nice in the dark all by myself.
John: Daddy has a night light in my room.
On balance, I find it likely John is acutely aware of the mother’s feelings towards the father, Ms Walker and his half-sisters. This clearly does not promote the father’s family to John.
The mother acknowledges the amount of time she proposes John spend with his father may not be enough to maintain the father-son relationship if John is living in Melbourne, particularly given the number of school holidays in Victoria and New South Wales which do not coincide[6]. Nevertheless, she proposes to relocate.
[6] Exhibit 2.
For the father’s part, I am satisfied the father recognises the importance and strength of John’s relationship with his mother and is willing to facilitate that relationship in the sense of ensuring their time together. He says if the mother is in Melbourne and John in Sydney, he proposes John spends 3 weekends a month, and half school holidays with the mother, including one full short holiday period a year. He acknowledges the distress John will experience if removed from his mother’s care and the difficult adjustment John would need to make.
Nevertheless, I accept the mother’s complaint that the father has not managed his communication with her appropriately, and has at times exacerbated an already difficult situation by his tone and manner of dealing with her. I accept that the father’s communication style has not assisted the mother to change her negative attitude towards him or his family. The father says he wants the mother to consult with him about decisions concerning John, yet has made very little effort himself to bridge the gulf between them. I find the father has been too ready to blame the mother for the problems between them without accepting a level of responsibility himself. The father has never invited the mother into his home, nor introduced his children to her. On reading the communication books, it is evident the father has rarely agreed to a request by the mother for John to attend special events on the father’s weekend. While I accept the father may at times have other commitments for John, I gained the impression the father’s focus was not always on John’s best interests when refusing these requests. The communication book is sad reading. Rarely does either party acknowledge anything positive the other has done for John or thank the other party. The text or subtext is irritation, anger and disappointment with obstructive behaviour exhibited by both the mother and the father.
I find it unlikely John would hear positive remarks about the mother or her family from the father or Ms Walker when with them. Nor, I find, would he hear positively about the father and Ms Walker when with the mother. As noted by Mr Hibbard, that needs to change urgently.
The father agrees in cross-examination that his communication with the mother must improve for John’s sake. He says “I will try to be more open and less untrusting”. Both parties have agreed to accept therapeutic assistance to help them focus on John’s needs rather than the fight with each other.
I find neither party has promoted the other party for John’s benefit.
I accept Mr Hibbard’s view that given these circumstances, time with his father is essential if John’s relationship with his father is to be maintained at its present strength. This factor favours the father’s proposal and I give it considerable weight.
The likely effect of any changes in John’s circumstances, including the likely effect on him of any separation from a parent or any other person with whom he has been living
On the mother’s proposal, John will see less of his father and his half siblings, and less of his extended family on his mother’s and his father’s side. He will spend 5 weekends a month with the father in 2007 and 4 in 2008. His weekends with the father will start later and finish earlier than they do now. This compares with spending 20 weekends a year with his father on the father’s proposal. On the mother’s proposal John will spend less than the half school holidays he spends presently with the father, because Victorian school holidays do not always coincide with New South Wales. The father’s proposal favours John’s best interests on this issue.
It seems John must change schools whether living in Melbourne or Sydney. If in Sydney, John’s present school, would be too far from his residence. The mother proposes living in south Sydney before moving to the northern suburbs. On both parties’ proposals, John must make new friends and adjust to a new living environment.
John’s circumstances will change when Mr Brown lives permanently with the mother, which the mother anticipates whether she lives in Sydney or in Melbourne. Mr Hibbard says this is an additional change John must face which will require some adjustment. On both parties’ proposals, John must face this adjustment, which may well be a positive one, given the strength of his relationship with Mr Brown.
On the father’s proposal, the mother may be required to give up her position at the University in Melbourne. She may be unemployed until she can find alternative employment. If this occurs, it is likely to put significant emotional and financial strain on the mother which in turn may impact adversely on John, at least in the short term. The authorities make clear that the Court must take into account the welfare of the resident parent which is important to the welfare of John. The mother’s proposal favours John’s best interests in relation to this factor, and I give it considerable weight.
The practical difficulty and expense of John spending time with and communicating with a parent
The father says on the mother’s proposal John would need to travel between Sydney and Melbourne 24-26 times a year. The father believes this would be onerous for John and unsustainable in the longer term given he will develop his friendships around his school and his local community. I accept the father’s submission in this regard.
I am satisfied on the evidence that the father would rarely travel to Melbourne.
The issues of practical difficulty and expense will not arise on the father’s proposal. I give some weight to this factor.
The capacity of each parent or other person to provide for John’s needs, including emotional and intellectual needs
There is no issue between the parties that each party has the capacity to provide for John’s physical and intellectual needs. Both are highly educated, as are their partners. Both have involved John in rugby and cricket and have encouraged his love of sport. The mother has involved him in the local church. Both have ensured his opportunity to socialise with children his own age and with extended family. Both have taught him a range of skills and exposed him to a variety of different experiences.
The father’s counsel submits a question arises as to the mother’s capacity to meet John’s emotional needs. Ms Rees cross-examined the mother about the conversations she has had with John about the proposed move to Melbourne. The mother acknowledges telling John he could only accompany her and Mr Brown to Melbourne if the father agreed or the Judge decided John could go. She says in her affidavit that she has said to John “we will have to see what Daddy agrees or if Daddy doesn’t agree, what the Judge says as to whether you can come to Melbourne”. She deposes in her later affidavit to telling John his father does not agree to the move and “there is a case before the Court to assist in deciding what may happen”. In cross-examination the mother concedes that given the way she has communicated the position to John, John may blame the father if the mother is unable to take up her position in Melbourne. She agrees her approach could be seen as “setting him up”. I agree with the father’s counsel that the mother has caused unnecessary pain and anxiety to John by her ill-considered handling of her possible move to Melbourne, but I take into account that this has been a difficult and unsettling period for both parties and John. I am not persuaded that the mother lacks the capacity in ordinary circumstances to provide for John’s emotional needs.
Mr Livingstone submits that if the mother is unable to move to Melbourne, she will be unemployed without job security, her career “will be up in the air” she will be distressed at her loss of career opportunity and resentful of the father. Counsel submits this may impact on her capacity to support John financially and emotionally and cause further problems in her communication with the father. While I accept that the mother will be disappointed if not permitted to move, there is no evidence before me as to how her employer might manage such a situation. It may be possible for the mother to work for the University in some external capacity or amended capacity which would enable her to stay with the same employer. On the other hand, it may not be possible. Whatever the outcome, the mother is clearly a capable, resilient and competent woman who has demonstrated an ability to adjust to difficult situations. I am satisfied any resentment or distress in the mother is likely to be only short term.
I have already noted my criticism of both parties for each failing to acknowledge to John an understanding of his need and love for the other. In this regard, I find neither party has demonstrated a capacity to meet John’s emotional needs.
I am not satisfied this factor favours either party’s proposal.
John’s maturity, sex, lifestyle and background, including his right to enjoy his aboriginal culture (if applicable)
There are no further matters I take into account in relation to this factor.
The attitude each parent has demonstrated to the responsibilities of being a parent
It is clear to me the mother has been and continues to be a devoted, caring and committed parent to John. Since John was 5 months old, she has been the one constant in John’s life which, as she says, he has found and continues to find reassuring, secure and safe. The mother says she has always encouraged and promoted the relationship between John and the father, particularly in the early years, because she regards this relationship as important to John. The father, for his part, has remained consistently and actively involved in John’s life since he was a baby. The father has paid child support, as assessed by the Child Support Agency, and has acknowledged the importance of the mother’s role as John’s primary carer and his main support. Yet they have been unable to build for John a safe bridge for him to cross between them. The father notes in his affidavit the consequent difficulties faced by John [7]:
When I collect John from his mother or drop him back to his home he is quiet and reserved. On the occasions that I have had to collect John not from the mother but from members of her family, John rushes up to me and greets me.
[7] At paragraph 106.
The mother appears to have remained angry with the father for a long time and those issues seem unresolved. Mr Hibbard reports[8] that the mother made negative comments about the father at interview which seemed to him more about her relationship with him, than John’s relationship with the father. She referred to the father as “obsessive and controlling” and as attempting to “squash my life” by opposing her move to Melbourne. Mr Hibbard anticipated that if not permitted to relocate, the mother would be “extremely resentful” that the father had denied her a significant opportunity. Mr Hibbard reports[9] the father’s wife as being negative about the mother. She says in evidence that the mother has never approved of her or her children and she prefers no contact between them or between the mother and her daughters.
[8] At page 6.
[9] At page 9.
I find the evidence about the way the parties have handled John’s sporting issues and the way the mother has approached her wish to move to Melbourne, clear examples of the parties’ failure to work together for John’s benefit and as such, failures of parental responsibility:
a)In early 2003 John told the father he was playing football on Saturdays in South-West Sydney (near where the mother was living). The father telephoned the mother who denied he was playing. John continued to talk about it, so in May 2003 the father wrote in the communication book that he was willing to take John to football on the weekends John was with him. Despite a follow up request for a response, the mother did not respond. The father followed it up in June and again in July advising the mother of his concern that John was missing football on his weekends and wanted his father to watch him play. The father wrote “we really need to sort this out for John’s sake”. The mother then replied, inviting the father to attend John’s last game of the season.
b)The parties were unable to co-operate sufficiently to enable John to enjoy a season of either rugby or cricket in one team. Instead he has had to play half a season for two different teams.
c)The parties were unable to co-operate sufficiently to arrange swimming lessons for John at a venue and time such that John could attend weekly lessons.
d)The parties were unable to discuss and resolve the issue of John’s passport.
e)The mother at no time mentioned to the father her wish to apply for employment in Melbourne. She applied for the University in Melbourne position in April 2006, attended for interview in mid-May 2006, was offered the position a day later and accepted it on 3 June 2006. It was over 3 months before the mother advised the father by letter of 5 September 2006 of her proposed move. She asked him to respond within 3-4 days because “this is a matter of urgency”. Given her decision to delay telling the father for 3 months, her demand for an urgent response is all the more inappropriate. I find the mother’s affidavit evidence about this issue sworn in September 2006, inaccurate and misleading. At no time does she say she had accepted the position before writing to the father.
Mr Hibbard reports[10] that in his view the mother presented…
“as not having fully thought through the implications of such a move for her son. In particular, she did not impress as giving any priority to John’s relationship with his father, or his father’s family. These did not seem as important to her as her own prospects.”
[10] At page 6.
I have serious concerns about each party’s refusal to recognise the emotional burden they have imposed on John by failing to establish a workable co-parenting relationship. Both appeared to accept that communicating via a communications book was acceptable. I find this all the more surprising given their level of education and their extensive experience working with young people. I am persuaded each party has preferred to hang on to his/her strongly held view that the other is at fault, than to address and relieve the pressure their attitudes have imposed on John.
I accept Mr Hibbard’s view that because of the lack of effective communication between the parties, John s welfare is best served by as much face to face time with the father as is practicable, which will best occur under the father’s proposal. I take this factor into account.
Any family violence or family violence order involving John or a member of John’s family
This factor is not relevant.
What orders would minimise the risk of there being further Court proceedings about John?
These parties have been involved in litigation on two previous occasions: in 2000 when John was approximately two years of age and in 2002 when John was nearly 4 years of age. Although both parties have complied with Court orders, they have failed to establish a regime of co-operative parenting. If John lives in Melbourne, as already noted, I find it likely that in time, John will find the travel to Sydney physically, socially and emotionally onerous. If John is reluctant to travel and in time refuses to travel, there may well be contravention proceedings brought by the father or an application for variation of orders brought by the mother. If John is in Sydney, in my view it is less likely there will be further proceedings between the parties.
The extent to which each parent has fulfilled or failed to fulfil, his or her responsibilities as a parent, including spending time with John, participating in decision–making about his welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain John
Each party has complied with Court orders and ensured John has spent time with each parent. Each party has also fulfilled his/her obligation to maintain John, though the mother has undertaken the much greater proportion of his care, both emotionally and financially.
However, as already noted, I accept Mr Hibbard’s view that the parties have failed to co-operate to make joint decisions in the interests of John s welfare. In this regard, each has failed to fulfil his/her responsibilities as a parent. I have taken this issue into account in relation to factors already considered.
Conclusion
I accept Mr Livingstone’s submission that the mother wants to start afresh with her “new family”. She and Mr Brown are committed to a long term relationship and speak of possibly having their own child. The mother has a new and challenging job which would allow her more time with John. If she relocates to Melbourne, the mother can distance herself from the father and his wife, and the stress of constant dealings with him. It is easy to see the attraction of the mother’s proposal from the mother’s point of view.
There is no issue that John will remain living with the mother, to whom he has the closest attachment. The issue is whether it is in John’s best interests for the mother to relocate with him to Melbourne and thereby reduce John’s face to face time with the father, his half-sisters, his step-mother and extended family members, or whether the mother should be restrained from moving away from Sydney so the present parenting arrangements can continue. Mr Hibbard supports the father’s proposal because he believes it is in John’s best interests to maintain the strong relationship he has with his father. In his view, the relationship is likely to diminish if John lives in Melbourne.
The legislation makes clear that John must be the focus of the inquiry. The court must consider the impact of the proposed relocation on John’s interests and must make orders it considers to be in the best interests of John in both the short and longer term[11]. This is not to say the welfare of the residence parent is not relevant and important, but as Carmody J stated in W & R, “the mobility rights of the mother yield to the best interests of the child”. The majority of the High Court in U v U[12] held that:
“whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent”.
[11] W & R (2006) 35 Fam LR 608
[12] (2002) 211 CLR 238
I must assess John’s best interests with reference to the objects of the Act and to the factors already referred to. Those objects and one of the two primary considerations include John having the benefit of both his parents having a meaningful involvement in his life to the maximum extent consistent with his best interests. Under the father’s proposal I have decided John will have his best chance of a strong relationship with both his parents, and with those to whom he is closest. I am not satisfied any benefits John might enjoy as a result of the mother’s new opportunity in Melbourne outweigh the likely detriment to John of missing out on having his father share in his sporting and other activities, seeing him regularly and having his father readily accessible to him as he grows to adulthood.
In relation to the parties’ history of poor communication, I am not persuaded the situation will improve if John lives in Melbourne, despite each party’s agreement to attend Relationships Australia for child-inclusive mediation.
I have concluded that John’s best interests are best served if his parents are both living in Sydney, that they can achieve a co-operative working relationship and make joint decisions for John’s benefit. As Mr Hibbard emphasised, for John’s short and long term wellbeing, it is imperative the parties can work together and learn to communicate with each other, whatever their differences. In my view this can only be achieved through skilled therapeutic intervention. The parties agreed to an Order which will require them to attend Relationships Australia for child-inclusive mediation. I am hopeful they will be assisted to understand the impact of their continuing failure to relate to each other in a more open and co-operative manner.
I have considered the Orders which will best promote the relationship between John and his father. Presently John spends from 5.00p.m Friday until 7.00p.m. Sunday with the father on alternate weekends in accordance with the 2002 Orders. The father collects and delivers John from and to the mother’s residence. The mother asks that those times be changed to 6.00p.m. Fridays until 6.00p.m Sundays. Mr Hibbard says John would benefit from spending more time with the father. The father asks that John spend time with him from the conclusion of school/or after school care on Friday until 7.00p.m on Sunday. In his view, it would be better for John if changeover on Fridays takes place away from the mother. The mother says John feels other children do not understand his situation and John would be under more pressure if he was required to take his overnight bag to school and after-school care on the weekends he spends with the father. The father says he appreciates this might be a difficulty for John and agrees to work out a way to avoid John being put in this position. Balancing the potential practical difficulties for John having to manage his bag against the need for John to be relieved of the pressure of changeover taking place in the presence of both parents, I am persuaded to make the Order sought by the father. I urge the father to resolve the practical difficulties for John.
In relation to school holidays, the present arrangement is for John to spend half school holidays with each parent. The father seeks an order that the half be extended to 10 days in two out of three short school holiday periods each year given John will not be spending time with the father between alternate weekends. I am persuaded by Mr Hibbard’s evidence that John should have increased time with the father, perhaps best arranged in school holidays, but have decided the increased time should occur in only one of the short school holiday periods each year. In my view, it is likely John will want to spend relaxed time with his school friends in his local area in holidays, particularly as he gets older and that he should be given the opportunity to do so.
As already noted, I find the mother has not prioritised the promotion of John’s relationship with the father in making her decision to accept a position in Melbourne. I am satisfied because of the parties’ inability to communicate, if she were to relocate John to Melbourne, it is unlikely the mother’s attitude will change. I have regard to Mr Hibbard’s evidence that as long as the mother accepts she cannot take John to Melbourne and affirms the importance of John’s relationship with his father, the arrangements will work for John.
I am satisfied that the Orders set out at the commencement of these Reasons are in John’s best interests.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 25 January 2007
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