MCCRACKEN & MCCRACKEN

[2019] FCCA 2701

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCCRACKEN & MCCRACKEN [2019] FCCA 2701

Catchwords:
FAMILY LAW – Parenting – interim hearing – relocation – where the mother relocated her residence and the residence of the child from Sydney to City A – where the father acquiesced to the relocation but later revoked his acquiescence – spend time with arrangements – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61F, 62G, 65D,

65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286

Mazorski & Albright (2007) 37 FLR 518

Godfrey & Sanders (2007) 208 FLR 287

Morgan & Miles (2007) 312 FLR 114

M & S (formerly E) (2007) FLC 93-313

Tait & Densmore [2007] FamCA 1383

McCall & Clark (2009) FLC 93-405

MRR & GR (2010) 240 CLR 461

Sayer & Radcliffe & Anor (2012) 48 FAM LR 298

Chapa & Chapa (2013) FLC 93-538

Banks & Banks (2015) FLC 93-637

Eaby & Speelman (2015) FLC 93-654

Oswald & Karrington (2016) FLC 93-726

Bondelmonte & Bondelmonte (2017) 259 CLR 662

Applicant: MR MCCRACKEN

Respondent: MS MCCRACKEN

File Number: SYC 1648 of 2019

Judgment of: Judge Morley

Hearing date: 17 May 2019

Date of Last Submission: 17 May 2019

Delivered at: Sydney

Delivered on: 2 October 2019

REPRESENTATION

Counsel for the Applicant: Mr Ford

Solicitors for the Applicant: Nolan Lawyers

Counsel for the Respondent: Mr O'Reilly

Solicitors for the Respondent: Lander & Rogers (Sydney)

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. The parties have equal shared parental responsibility for the child X, born … 2015.

2. The child live with her mother.

3. That the mother may maintain the child’s place of residence at City A.

4. The child spend time with her father as follows:

   (a)On the second weekend of each calendar month from 6:00pm on Friday until 2:00pm on Sunday, with the father to collect the child from the mother’s residence in City A at the commencement of his time and deliver the child back to the mother at her residence in City A at the end of his time;

   (b)On the fourth weekend of each calendar month from 6:00pm on Friday until 12.00 noon on Sunday, with the mother to deliver the child to the father’s residence at the commencement of his time and the mother to collect the child from the father’s residence at the end of his time;

   (c)On one additional weekend in each calendar month, at the option of the father, and provided the father gives to the mother no less than 72 hours notice of his intention to spend the time, from 6:00pm on Friday until 2:00pm on Sunday, with the father to collect the child from the mother’s residence in City A at the start of his time and return the child of the mother’s residence in City A at the end of his time;

   (d)At such other times as may be agreed between the parties from time to time.

5. The father communicate with the child by Skype or FaceTime each Tuesday and Thursday, and each Sunday when she has not spent time with him, at  some time between 6:00pm and 7:00pm or as otherwise agreed between the parties from time to time.

6. That the mother shall contribute half the cost of the father’s flights to spend time with the child in City A, up to a total cost of $100.00 for each such spend time occasion, provided that the father pays for the flight at first instance and thereafter provides the mother with a copy of the invoice evidencing the total cost of the flights purchases, such payment to be made by the mother into a bank account nominated to the mother by the father for that purpose.

7. That each of the parties is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of the child and each party is further restrained from allowing the child to remain in the presence of, or within the child’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.

8. That for the purpose of identifying the second and fourth weekend of each calendar month, the first weekend of the calendar month is that weekend on which both the Saturday and the Sunday fall in the new calendar month.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1648 of 2019

MR MCCRACKEN

Applicant

And

MS MCCRACKEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings between the Applicant father, Mr McCracken, (“the father”) and the Respondent mother, Ms McCracken, (“the mother”) relating to parenting arrangements for their only child, X (“the child”). In particular on an interim basis, whether the mother may maintain X’s place of residence in City A in New South Wales, as the mother seeks, or whether she must return her to reside within a twenty kilometre radius of a particular address in Suburb D in New South Wales, as the father seeks.

2. It is mutual between the parties that in either event, the child will live with her mother.

3. The father is thirty-one years of age and the mother is thirty-six years of age. The parents commenced to cohabit on … 2013, they married on … 2017, and they separated on a final basis on 30 August 2018, according to the mother, and in mid-September 2018, according to the father.  The child was born on … 2015 and is currently four years and five months of age.

4. In the Initiating Application and Amended Initiating Application, the father indicates that he is of Aboriginal origin, but there is no evidence provided by either of the parties that addresses X’s aboriginality or provides assistance with the Court’s obligations under section 61F.

5. The interim hearing was in the nature of an interim relocation case, that description relating to the principal issue between the parties and not meaning that the matter is treated in any way different to any other interim parenting matter.  The guiding principle is, as in all interim parenting matters, that whatever parenting orders are made, they are made with the best interests of X as the paramount consideration.

6. At the hearing, the father was present and represented by Mr Ford of Counsel.  The mother was present and represented by Mr O’Reilly of Counsel.

7. This matter differs from many other interim relocation matters that come before the Court, in that the mother gave to the father notice that she intended to relocate X’s place of residence to City A, and the father initially acquiesced in that move, which occurred on 9 November 2018. The father did not indicate his change of mind until he commenced proceedings on 18 March 2019.

8. The other issue for determination at interim hearing is the amount of time, and on what conditions, if any, the father should spend with X in the context of X residing in either City A, or within a twenty kilometres radius of the address in Suburb D.

Background Facts

1. The parties separated on either 30 August 2018, or in mid-September 2018, when X was three years of age. At the time of separation, the family had been living at the former matrimonial home at C Street, Suburb D, New South Wales. The father moved out of that property and into residence with his father and brother in Suburb J in mid-September 2018.  The mother and X continue to reside in the Suburb D property.

2. In late October 2018, there was an exchange between the parents in relation to the mother’s wish to move with X to City A.  The mother says that she said to the father:

   It is best for X and myself to move to City A to be closer to mum so we have support.

3. In relation to this, the father replied:

   Yeah I know, I won’t stop you.

4. The parties agree that the mother sent to the father a text message at 7:25pm on 22 October 2018 in the following terms:

   I just need you to give me an answer as to whether or not you will stop us moving to City A.  Obviously I’m not just going to get up and go.  And I stand by what I said – you are and always will be an important part of X’s life and you have every right to be in her life.  I really want to put plans in place – without uncertainty and doubt.  I also think it will be good for you to have your own space.  I would like to give X and myself a new happy environment and a change of scenery.  Just let me know, please.

5. The parties further agree that the father responded by sending to the mother a text message at 7:26pm that day saying:

   Yeah that won’t be an issue.

6. Prior to the mother and X relocating to City A, an occasion occurred between 1 and 3 November 2018, when the father was spending time with X by arrangement between the parents, on the mother’s evidence, for daytime only on 1 November 2018, and on the father’s evidence for three days and two nights from 1 to 3 November 2018.  The mother regards this is an occasion when the father:

   …unilaterally retained X

7. That assertion is not contradicted in the father’s evidence, though he styles it as an occasion when he simply collected X from her child care at 4:00pm on 1 November 2018 and had her in his care until about 5:00pm on 3 November 2018, during which time the mother:

   …messaged me to ask how X was.  I responded on each occasion with an update.

8. In the mother’s version, she made several requests to the father to return X to her care. In response to one request, she received a response from the father:

   …you made me do this, I have the right to have her for the night.  I wanted her to sleep with me.

9. The mother relocated with X to City A on 9 November 2018.

10. Difficulties seem to have arisen between the parties in relation to the father spending time with X after her place of residence had been relocated by the mother to City A. 

11. The father deposes that on 4 December 2018 he sent a text message to the mother that read:

    I can’t live like this.  I need to be in X’s life.  I can’t do that when she is in City A. Can you please consider moving back to Sydney?

12. On 18 December 2018, the father instructed his legal practitioners to direct correspondence to the solicitors acting for the mother, in an effort to agree on times when the father could spend time with X over Christmas, and during late December 2018 and January 2019.

13. On 21 December 2018, the father’s legal practitioners received correspondence in reply. At the start of that correspondence it was made plain by the mother that she required any time spent by the father with X to be supervised.  The father did not agree to supervision. 

14. In order to spend some time with X in City A, the father ultimately agreed to be supervised on Saturday.  Supervision was to be undertaken by the mother.

15. The father deposes that:

    X was constantly distracted by [the mother] who was nearby at all times.

16. The father did not spend any other time with X until after interim orders were made on 23 April 2019.

17. The father commenced these proceedings by filing his Initiating Application on 18 March 2019, seeking interim and final parenting orders.  The mother filed her Response on 16 April 2019, seeking interim and final parenting and property settlement orders.  The father filed an Amended Initiating Application on 10 May 2019, seeking interim parenting orders and final parenting and property settlement orders.

18. The matter came before the Court for a first mention on 23 April 2019.  The matter could not be accommodated for an interim hearing on the day and was adjourned to 11:30am on 17 May 2019 for interim hearing.

19. Interim orders pending the interim hearing were made by consent on 23 April 2019, without prejudice to either parties interim applications, to the following effect:

    a)X live with her mother in City A;

    b)X spend time with her father from:

    i)9:00am to 3:00pm on 4 and 5 May 2019 in City A;

    ii)9:00am to 3:00pm on 18 May 2019 in Sydney;

    iii)8:30am to 12:30pm on 19 May 2019 in Sydney; and

    iv)Communication by Skype or FaceTime each Tuesday, Thursday, and Sunday at 6:00pm or as otherwise agreed.

    c)The father was restrained from removing X from the City A region during the occasions on 4 and 5 May 2019;

    d)Changeovers in City A occur at E Cinema and changeovers in Sydney occur as agreed between the parties;

    e)A non-denigration order;

    f)During periods of the father’s time with X, he personally supervise.

20. Between the making of those interim interim orders and the interim hearing, X spend time with her father from 9:50am until 4:00pm on Saturday, 4 May 2019, and from 8:00am until 2:00pm on Sunday, 5 May 2019, occurring in City A.

21. On 5 December 2018, the father commenced a relationship with a new partner (the father’s term), Ms F. The father and Ms F had not commenced to cohabit by the time of the interim hearing. 

22. On both 4 and 5 May 2019, the father was accompanied during his time with X by Ms F. When this came to the mother’s knowledge, the father asserts that the mother said to the father at changeover:

    Who is she?

23. The father asserts that he replied:

    It’s none of your business.

24. The mother asserts that when she asked the father who was with him he responded angrily and said words to the effect of:

    What the fuck does that have to do with you?

25. The father deposes that there have been difficulties with his telephone communication pursuant to the interim orders with X.  He asserts that on one occasion X said:

    I don’t want speak to him.

26. The father deposes that he overheard the mother say:

    If you don’t want to speak to him then tell him and say goodbye.

27. The father deposes that on another occasion he overheard the mother say:

    Dinner is ready

28. To which X said to him:

    I’ve got to go, dinner’s ready.

29. The father deposes that he continues to reside with his father, brother and his father’s partner in Suburb J. He deposes that when X spends overnight time with him at Suburb J she will have her own room and toys.

30. The father, as Vice President of the Sports Club, deposes that the sports season starts in October and finishes in about March. The father deposes that he plays games each Saturday from 1:00pm until 5:30pm. He deposes that his mother and other family members would be able to care for X while he was attending to play sports on Saturdays on occasions when X may be in his care.

31. The father also plays competitive level sports in winter.  The season starts in mid-April until September each year and the father plays in games each Saturday, for up to 5 hours.  His mother is available to care for X either at the games or elsewhere whilst father is engaged in playing.

Orders Proposed by the Parties

1. On interim hearing, the father proposed interim orders in the alternative depending on whether the mother is ordered to return X’s place of residence to within a twenty kilometre radius of the former matrimonial home at Suburb D, or allowed to maintain a place of residence in City A. 

2. The preferred orders sought by the father are as follows:

   a)That within forty-two days the mother return X’s place of residence to the C Street, Suburb D, address or another address within a twenty kilometres radius of that address;

   b)Until X’s place of residence is returned to Sydney, she live with the mother and spend time with the father:

   i)On the second weekend in each calendar month from 6:00pm on Friday until 2:00pm on Sunday, with the father to collect X from the mother’s residence in City A at the start and deliver her to that residence at the conclusion of his time;

   ii)On the fourth weekend in each calendar month in Sydney from 6:00pm on Friday until 2:00pm on Sunday, with the mother to deliver X to the father’s residence at the start of his time and collect X from that residence at the end of his time;

   iii)At such other times as may be agreed between the parties in writing.

   c)That upon X returning to live in Sydney she spent time with the father as follows:

   i)Each alternative weekend from 4:00pm on Friday until 2:00pm on Sunday; and

   ii)Every Wednesday from 4:00pm or conclusion of school, once X starts school, until 7:00pm.

   d)That the mother be restrained from relocating with the child outside of the Sydney Metropolitan Area.

3. In the event that the interim orders allow the mother to remain in City A, the father sought orders that he spend time with X as follows:

   a)On the second weekend in each calendar month from 6:00pm on Friday until 2:00pm on Sunday, with the father to collect the child from the mother’s residence in City A at the start of his time and deliver the child back to that residence at the end of his time;

   b)On the fourth weekend of each calendar month in Sydney from 6:00pm on Friday until 2:00pm on Sunday, with the mother to deliver X to the father’s residence at the start of his time and collect X from that residence at the end of his time; and

   c)On one occasion per calendar month, provided that the father gives the mother at least 72 hours notice, from 6:00pm on Friday until 2:00pm on Sunday, with the father to collect X from the mother’s residence in City A and return her to that residence at the end of his time.

4. The father did not seek an order that the child live with him. In any event, the injunctive order he sought in the event that orders are made that the mother return X to reside in Sydney was styled as an injunctive order restraining the mother from relocating with X outside the Sydney metropolitan area.

5. The mother sought the following interim orders:

   a)The X live with the mother;

   b)That the mother and X be permitted to reside in the City A area;

   c)That the father spend time with X as agreed between the parties, and failing agreement, commencing on the first weekend following the making of orders:

   i)From 9:00am until 3:00pm on Saturday and Sunday each second weekend in City A;

   ii)By Skype or FaceTime each Tuesday, Thursday and Sunday at 6:00pm, or as otherwise agreed between the parties; and

   iii)At such other times as may be agreed between the parties from time to time.

   d)That the mother shall contribute half the cost of the father’s flights to City A (in the event he chooses the fly) every two weeks, up to a total cost of $100, and provided that the father pays for the flight at first instance and thereafter provides the mother with a copy of the invoice evidencing the total cost of the flight purchase;

   e)That the mother shall facilitate X spending time with the father in Sydney up to 4 times per year on such dates and times as may be agreed between the parties and for that purpose the parties shall pay equally the cost of the child’s flights to and from Sydney;

   f)That on the occasions when the father is spending time with X in City A, he be restrained from removing X from the City A region;

   g)In City A changeover occur at E Cinema, and when spending time in Sydney, changeovers occur at such location as may be agreed between the parties in writing;

   h)That the father enrol in and complete the next available ‘Triple P’ and/or ‘1-2-3 Magic’ parenting skills program, and ‘Circle of Security’ course and provide to the mother written evidence of his completion;

   i)A mutual non-denigration order;

   j)That an order be made under section 62G for a Family Report to be prepared by a Family Consultant.

The Evidence

1. The Father relied on the following documents:

   a)Amended Initiating Application filed 10 May 2019;

   b)Notice of Risk filed 18 March 2019 – no risks asserted;

   c)His affidavit affirmed 15 March 2019 and filed that day;

   d)His affidavit sworn or affirmed 13 May 2019 and filed that day;

   e)Affidavit of Ms B, the paternal grandmother, affirmed 7 May 2019 and filed 10 May 2019;

   f)Affidavit of Ms F sworn or affirmed 9 May 2019 and filed 10 May 2019;

   g)An Amended Case Outline prepared by his Counsel, Mr Ford, with Minutes of the Orders sought by the father in the alternative.

1. The mother relied on the following documents:

   a)Response filed 16 April 2019;

   b)Notice of Risk filed 16 April 2019 – asserted risk in relation to concerns held by the mother about the father’s mental health;

   c)Her affidavit sworn 15 April 2019 and filed 16 April 2019;

   d)Her affidavit sworn 10 May 2019 and filed that day; and

   e)A Case outline prepared by her counsel, Mr O’Reilly, from a draft prepared by Ms Lioumis of Counsel, including a Minute of the interim orders sought.

2. Helpful submissions were provided by Counsel for each of the parties in the Case Outlines provided and also by way of oral submissions at the interim hearing.

3. The relevant evidence of the parties, both agreed and disputed, is summarised below.  I have read and very carefully considered all of the evidence contained in both of the affidavits sworn by the mother and in both of the affidavits sworn or affirmed by the father and in the affidavits by the father’s supporting witnesses.

4. The thrust of the father’s evidence is that he initially agreed to the mother and X relocating to City A but then changed his mind after they had gone there, whether because he received legal advice or because he felt that he was experiencing too much difficulty in spending time with X on a basis acceptable to him, considered by him to be in the best interests of X, or perhaps both. 

5. He asserts in his evidence that he is a competent and capable parent to care for X for the periods of time he seeks in his proposed orders. The father asserts a fear in his evidence, though those sections of his affidavits are in the nature of submissions, that the mother is not prepared to properly facilitate and encourage the ongoing relationship between himself and X, particularly in view of the difficulties caused by the distance between them.

6. The paternal grandmother, Ms B, gives evidence in her affidavit that there was an occasion during the parent’s relationship, when the mother asked her to mind X while the father played sport and the mother attended a hen’s night with friends.  On that occasion she cared for X overnight.  She deposes that she is available from 8:00am to 10:00pm five days each week to have X in her care, or to assist the father with caring for X when she is in his care. She is available to assist the father with X on weekends when the father is attending sporting commitments, including sports on Saturdays.

7. The father’s new partner (also her term, though both she and the father depose that they have not commenced cohabitation) Ms F, deposes that she is in full-time employment as a public servant at Suburb K and that she is currently pregnant to the father and expecting their baby to be born in … 2019.  Once the baby is born, the father and Ms F plan to live together in Suburb J, with Ms F taking maternity leave and not returning to work until … 2020.  She does not have any other children.  She deposes that she is available to assist the father with X every weekend and she attends all of the father’s sporting events.  She is able to care for X during these sporting events.

8. In the mother’s affidavits, she deposes that X has settled immediately and well into living in City A, and that she currently attends weekly hobbies and sports lessons, pre-school and playgroup, and is engaged in a range of community events and activities on a weekly basis.  X’s maternal grandmother lives in City A and the mother and X receive material support from the maternal grandmother such that the mother deposes that she does not have to work full-time to support herself and X.

9. In her evidence, the mother indicates an opposition to X spending any overnight time with the father and bases that opposition on the occasion in early November 2018 when she asserts the father:

   Unilaterally retained X.

10. In the mother’s opinion, the father lacks sufficient parenting capacity to properly care for X during long periods of time on his own. 

11. In relation to the mother’s assertion that the father’s parenting capacity is insufficient, she enumerates a number of matters in paragraph 27 of her affidavit of 15 April 2019, including that the father failed to engage with X on many occasions of opportunity prior to the parties separation, that during the parties cohabitation, the father often walked around the house and/or slept naked, including in X’s presence, and that during the cohabitation the father often watched adult rated television shows and sports on television when X and the mother were home.  The mother does not give any detail of what she means by:

    Adult rated television shows and sports

12. The mother also complains that the father recently created a “Go Fund Me” sponsorship page seeking donations so that he could fund the commencement of these proceedings.  The mother deposes this page was publicly available on the Internet and included a large photo of himself and X, and details about the current family law issues, including the mother’s relocation with X to City A.  The mother annexed a copy of the relevant page to her affidavit.

13. As referred to in her Notice of Risk, the mother presented evidence in paragraph 29 of her affidavit of 15 April 2019 relating to concerns held by her about the father’s:

    …current mental state and the impact that his mental health may have on his ability to care for X.

14. She details on 23 August 2018 that the father said to her words the effect of:

    I have thought about driving off the road or driving into a truck so many times.  I just don’t want to be here anymore.

15. In early February 2019, the mother observed that the father uploaded a post on Facebook that referred to the definition of ‘suicide’ against the definition of ‘suicidal’ and also posted a:

    Concerning image of a clown drinking alcohol.

16. The mother annexed a copy of the clown picture to her affidavit which bore a legend around the picture that states:

    The biggest battle in life is between you and the old you.

17. The picture referenced a telephone number for the Addiction Helpline.  The mother did not post an image in relation to the definitions.  She also referred to her understanding that a relative of the father suffers from clinical depression, but that evidence in no way attaches to the father in presenting any risk in relation to his mental health. 

18. I have carefully considered this evidence and I find that there is no basis upon which to find that there is any risk to X in relation to the father’s mental health.

19. In her affidavit of 10 May 2019, the mother deposes that on … 2019 she commenced employment with an employer in Town G.  The rest of her evidence in that affidavit mainly revolves around her objection to the father being accompanied by his new partner, Ms F, while spending time with X in City A on 4 and 5 May 2019.

The Relevant Law

1. The Full Court and High Court have authoritatively discussed the approach to be followed in interim parenting hearings by reference to the legislative pathway (see Goode & Goode[1] and MRR & GR[2]).

   [1] Goode & Goode (2006) FLC 93-286.

   [2] MRR & GR (2010) 240 CLR 461.

2. In Goode & Goode, the Full Court suggested that in an interim application relating to parenting issues, the Court should follow the framework set out in paragraphs 81 and 82 of that judgment:

   [81] In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   [82] In an interim case that would involve the following:

   (a)     Identifying the competing proposals of the parties;

   (b)     Identifying the issues in dispute in the interim hearing;

   (c) Identifying any agreed or uncontested relevant facts;

   (d)Considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)Deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;

   (f) If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA (3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)Even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.

3. As is made evident in the cases, and in particular in Goode & Goode, the statutory pathway applies in interim as well as in final hearings. In cases of disputed or contested evidence in interim proceedings, the Court should be cautious in making findings of fact where there is contested evidence.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders and the principles behind those objects. I have considered those objects and the principles behind those objects in formulating these reasons and the parenting orders that result.

5. Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child or children as the paramount consideration.

6. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the primary considerations set out in subsection (2), noting the weighting requirement in subsection (2A), and the additional considerations set out in subsection (3).

7. Section 61DA(3) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

8. Pursuant to section 65DAA, if the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must first consider whether the child spending equal time with each of the child’s parents would be in the best interests of the child and reasonably practicable, and if it is so in the best interests of the child AND reasonably practicable, consider making an order for the child to spend equal time with each of the parents.

9. If equal time is found not to be in the child’s best interests, or impracticable, or is found to be in the child’s best interests and practicable, but the Court considers and rejects equal time with each parent, as a result of consideration of one or more of the matters in section 60CC, then the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parent with whom the child does not live, on the same triple-step basis as for the consideration of equal time.[3]

   [3] See MRR & GR [2010] HCA 4.

10. Under the combination of sections 60CA, 60CC, and 65D if neither equal time nor substantial and significant time is considered to be in the best interests of the child, or is impracticable, or is considered to be in the best interests of the child and practicable, but the Court after considering making such an order does not do so, then the Court may make such orders as in the discretion of the Court it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC. The process is one involving the exercise by the Court of a judicial discretion.

11. As was said by the High Court in Bondelmonte & Bondelmonte[4] at paragraph 32 of the joint judgment of the bench:

    [32]A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis v Norbis (1986) 161 CLR 513 at 518], as does the overall assessment of what is in the best interests of the child.

    [4] Bondelmonte & Bondelmonte (2017) 259 CLR 662.

12. Before beginning a determination of what is in X’s best interests by consideration of the primary and additional considerations in section 60CC, I turn to the guidance of the Full Court of the Family Court of Australia as to the proper approach on an interim basis to the issue of relocation of a child to a place a significant distance from one of the child’s parents. In this case, the distance being that between Suburb J in Sydney and City A on the New South Wales Region L. I am not given any evidence by either of the parties as to the actual distance between those places, driving time, flight duration or availability and cost. The phrase “significant distance” that I have used is the same as that used by the father in paragraph 39 of his affidavit of 15 March 2019.

13. These proceedings are for orders on an interim basis. In determining whether to make orders as sought by the father requiring, in effect, that the mother return X’s, and her own, place of residence to the Sydney area (within a twenty kilometre radius of the former matrimonial home address at Suburb D) pending a final hearing (the father seeks specific order that X live with her mother on return to Sydney), or to make orders as sought by the mother allowing her to maintain X’s place of residence in City A pending a final hearing, the Court is, of course, not determining the “relocation” issue on a final basis, but only on the basis of what parenting arrangement is best in the interests of X between the making of interim orders and the making of final orders after a full hearing with testing of all the evidence and, as an order for a Family Report has already been made, the assistance of some expert social science evidence.

14. The legislative pathway does not make any distinction between the approaches to be taken in determining what is best in the interests of a child on an interim basis and on a final basis and, as indicated in Sayer & Radcliffe & Anor:[5]

    [47] It is now well-established principle that, while some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathway as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders.

    [5] Sayer & Radcliffe & Anor (2012) 48 FAM LR 298.

15. In Sayer & Radcliffe & Anor at paragraphs 47 to 54, the Full Court discussed the relevant principles that apply in parenting proceedings that involve a relocation issue:

    [47] It is a now well-established principle that, while some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders: see Morgan v Miles (2007) 38 Fam LR 275; (2007) FLC 93-343; [2007] FamCA 1230 at [72]-[73] (Morgan), Palmer v Hammer (No 2) [2011] FamCAFC 196 at [28] (Palmer (No 2)).

    [48] A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]-[81]. It is not simply a matter of comparing the relocating party's proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party's proposal on its merits, in accordance with the prescribed legislative pathway.

    [49] The provisions of the Act which form that legislative pathway have been reproduced at length by this court many times: Taylor v Barker (2007) 37 Fam LR 461; [2007] FamCA 1246, Morgan (above), Adams v Randall (2011) 46 Fam LR 453; (2011) FLC 93-482; [2011] FamCAFC 204. It is sufficient for current purposes to identify and summarise those sections contained in Pt VII of the Act which govern decisions about children, and consider statements of the High Court and of this court which guide their application in the context of relocation cases:

    Section 60B – Objects of Part and principles underlying it.

    Section 60CA – Child's best interests paramount consideration in making a parenting order.

    Section 60CC – How a court determines what is in a child's best interests.

    Considerations relevant to relocation include:

    ·Primary considerations: meaningful relationship with both parents.

    ·Additional considerations:

    -nature of child's relationship with parents and other persons;

    -extent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate;

    -likely effect of changes in child's circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living;

    -practical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child's right to maintain personal relations with both parents on a regular basis;

    -capacity of each parent and any other person to provide for the needs of the child.

    Section 61DA – Presumption of equal shared parental responsibility when making parenting orders.

    Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable).

    Section 65DAA(5) – Factors the court must have regard to in determining reasonable practicability:

    (a) How far apart parents live.

    (b) Parents' current and future capacity to implement an arrangement for equal or substantial and significant time.

    (c) Parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements.

    (d) Impact arrangements would have on the child.

    (e) Such other matters the court considers relevant.

    [50] The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.

    [51] The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR (2010) 240 CLR 461; 263 ALR 368; 42 Fam LR 531; (2010) FLC 93-424; [2010] HCA 4 (MRR), an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said ( at [6]-[15]):

    [6] Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by "ensuring that [they] 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". Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child's best interests are listed in s 60CC.

    [7] Section 65D(1) provides that the Court [...] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. [...] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.

    [8] Sub-section (1) of s 65DAA is headed "Equal time" and provides: "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

    (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

    (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

    (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

    Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:

    (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

    (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

    (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

    Sub-section (3) explains what is meant by the phrase "substantial and significant time".

    [9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

    ...

    [15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

    [52]In this case an order for equal shared parental responsibility was made. The orders for time the children have with the father were on an ever increasing basis beginning with 9 am to 12 noon on Saturday, fortnightly to 9 am to 5.30 pm on a Saturday, fortnightly. After May 2012 the time was to include a Wednesday from 2.30 pm to 5.30 pm. Short periods of time were provided for on special days including Christmas. These orders were hardly substantial and significant time. No reasons were given connecting the orders about time with the father and the order for equal shared responsibility.

    [53]There can be no doubt that the decision the Federal Magistrate was required to make was very difficult. All relocation decisions are difficult, not the least because of the serious ramifications involved for the parents and the children. Clarification and guidance has been provided by decisions of this court. We refer to the approach outlined in Starr v Duggan [2009] FamCAFC 115 per Boland, Thackray and Watts JJ where their Honours said (at [33]-[39]):

    APPROACH TO APPLICATIONS INVOLVING RELOCATION OF A CHILD

    [33] The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the "paramountcy principle" found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.

    [34] The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346.

    [35] In McCall & Clark the Full Court referred (at [58]-[60]) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at [61] and [62]) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.

    [36] The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be "dual consideration" of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child's circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).

    [37] Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.

    [38] However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

    ·first make findings concerning the relevant s 60CC factors;

    ·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and

    ·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) -- which may be done by referring back to the earlier s 60CC findings.

    [39] Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child's best interests, including the proposal to relocate.

    [54] The requirement to clearly rather than inferentially follow the legislative pathway in relocation cases was confirmed recently by this court in Heaton v Heaton [2012] FamCAFC 139 (Heaton) per Coleman, Ainslie-Wallace and Ryan JJ. Their Honours said (at [32]-[39]):

    [32] His Honour was first required to determine the children's best interests by reference to the well known "primary" and "additional" factors referred to in s 60CC in the light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to Port Macquarie. Although the mother's "fall back position" of remaining in Sydney to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour's failure to adequately evaluate her application to relocate and misapplication of the section.

    [33] It is only in this way that his Honour could have properly considered all of the relevant factors to come to a determination of the children's best interests.

    [34] His Honour was then obliged to consider the provisions of s 65DAA(1).

    [35] As the plurality of the High Court said in MRR v GR 263 ALR 368; 42 Fam LR 531; (2010) FLC 93-424; [2010] HCA 4 at [13]:

    Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of the order ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist ...

    [36] Their Honours continued:

    His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances ...

    [37] Weregretfully conclude that his Honour erred in his determination of the issue of equal shared time. By conflating the disparate issues of "best interests" and "reasonable practicability" the Federal Magistrate's reasons for judgment do not demonstrate substantive, if not formal, adherence to the legislative pathway. As is apparent from a reading of them, with respect to his Honour, his consideration of each issue was vitiated by its dependence upon conclusions or assumptions with respect to the other issue. His Honour was required to first consider whether equal time was in the children's best interests pursuant to s 60CC. If he concluded that it was, it was then necessary to consider the parties' competing proposals and determine whether equal time was reasonably practicable. He did not do this.

    [38] These errors are such that the appeal must succeed. As the High Court said in MRR v GR (supra), the determination of both of the questions in s 65DAA(1) provide the source of jurisdictional power to make the order to which the section refers. It is not sufficient to argue that although his Honour's findings do not follow that "pathway" when read as a whole, inferentially, it may be said that he made the determinations required of him in s 65DAA.

    [39] It is unnecessary for us to consider whether, generally, a "slavish" pursuit of the "legislative pathway" is not essential.

1. Of particular assistance in making the required determination of what parenting orders will be in X’s best interests on an interim basis is the decision of Boland J sitting as the Full Court in Morgan & Miles.[6]

   [6] Morgan & Miles (2007) 312 FLR 114.

   [72] There can be no dispute that in determining a case where one party, which research indicates is invariably the mother, (see Easteal, P, Behrens, J and Young, L, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law, 234) wishes to relocate, a court is making a parenting order generally about who the child will live with or with whom the child shall spend time. The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.

   [73] It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole, consideration.

   [74] The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application [to] obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.

   [75] It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.

   [76] If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally.

   [77] The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.

   [78] 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[ly] 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.

   [82] It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.

   [83] I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.

   [84] The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.

   [85] In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:

   [71] The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

   [72] In our view, it can be fairly 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, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   [73] That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

   [86] I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.

   [87] As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.

   [88] It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.

Discussion – The Best Interests of the Child

1. In line with the authorities referred to above, the process of determining what parenting orders should be made in X’s best interests on an interim basis where a central issue is relocation of her place of residence follows the same legislative pathway as all interim parenting determinations. 

2. The determination of what is in X’s best interests is guided by the primary and additional considerations in section 60CC, and in giving consideration to those factors I have given attention to, and I am guided by, the objects of Part VII and the principles underlying those objects as set out in section 60B of the Act. As the authorities state certain of the considerations in section 60CC or a particular application to relocation cases, and that issue will also be an element in my consideration of the matters referred to in section 65DAA if I determine, either due to the presumption in section 61DA or otherwise, to make an order that the parties have equal shared parental responsibility for X.

3. In relation to the considerations in section 60CC, the Full Court said in Banks & Banks[7] at paragraphs 47 to 50:

   [47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   [48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   [49] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   [50] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [7] Banks & Banks (2015) FLC 93-637.

4. Sub-section 60CC(2) sets out the primary considerations the Court must consider when determining what is in a child’s best interests. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents, and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. Sub-section 60CC(2A) mandates that in applying the primary considerations, the Court is to give greater weight to the need to protect the child over the benefit of the child of having a meaningful relationship with both of the child’s parents.

6. What is meant by a “meaningful relationship” in section 60CC(2)(a) has been the subject of a number of leading cases.

7. In  Mazorski & Albright[8] Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

   [8] Mazorski & Albright (2007) 37 FLR 518.

8. Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders,[9]  an appeal involving an application by a mother to relocate, agreed with Dessau J in M & S (formerly E)[10] and said at paragraph 33:

   [33] The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.

   [9] Godfrey & Sanders (2007) 208 FLR 287.

   [10] M & S (formerly E) (2007) FLC 93-313.

9. Later, at paragraph 36, his Honour said:

   [36] It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

10. In Tait & Densmore,[11] Cronin J considered the distinction made by Kay J in Godfrey & Sanders between an optimal relationship and a meaningful relationship and said at paragraph 170:

    [170] Kay J distinguish between the optimal relationship and the meaningful relationship. The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that the children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others.  They need to learn about the privileges and responsibility which will devolve upon them as parents.  Those are fundamental parts of the meaningful relationship.

    [11] Tait & Densmore [2007] FamCA 1383.

1. In McCall & Clark,[12] after referring to the matters quoted above from Kay J in Godfrey & Sanders, the Court said:

   [12] McCall & Clark (2009) FLC 93-405.

   [118] It appears to us that there are three possible interpretations of s 60CC(2)(a):

   (a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);

   (b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and

   (c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).

   [119] We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.

   [120] We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.

[121] In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.

[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

1. It is inherent in all of the evidence that there is a meaningful, close and loving relationship between X and her mother, and the benefit to X of having that meaningful relationship with her mother is self-evident.  That proposition is inherently supported by the father in terms of the orders that he seeks on both the interim and final basis. 

2. The father’s proposal involves X remaining living with her mother, whatever determination is made as to where X and her mother will live.  I say ‘where X and her mother will live’ because the father’s proposal, as phrased in the orders sought by him, requires the mother to give up her residence in City A and take up residence with X at the former matrimonial home address in Suburb D, or within a twenty kilometre radius thereof, being in effect a proposal requiring a coercive order binding the mother as to where she will live on an interim basis. 

3. In relation to the interim orders sought by the father, besides the order “That upon the child returning to Sydney, the child live with the mother …”, the father seeks a further order in terms “That the mother be restrained from relocating with the child outside of the Sydney Metropolitan area.”  That is different to an order that the mother be restrained from relocating the child’s place of residence outside of the Sydney metropolitan area and its terms amounts specifically to a coercive order on the mother.

4. The Full Court in Oswald & Karrington,[13] though dealing with final orders in a relocation issue matter, said:

   [16] It may be accepted, as it was in this case, that the Court has power to make a coercive order.  Importantly though, it is well-established that the proper exercise of that power is “at the extreme end of the discretionary range” – Sampson v Hartnett (No 10) (2007) 38 Fam LR 315; [2007] FamCA 136 - and there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of children.

   [17] Consequently, as emphasised by the full court in D v SV (2003) 175 FLR 25, 30 Fam LR 91; (2003) FLC 93-137; [2003] FamCA 280 and by the Full Court in Samson v Hartnett (No 10) (supra), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to the parties proposal, and involve a primary caregiver undertaking that role in a place not of that parents choosing.

   [13] Oswald & Karrington (2016) FLC 93-726.

5. It is difficult to determine the nature and strength of the relationship between the father and X on the basis of the evidence before the Court on interim hearing.  Certainly, X lived with her mother and father at the time of her birth on … 2015 until they separated in August or September 2018 when she was about three years and four months of age. 

6. The father says in his affidavit of 15 March 2019 at paragraph 39:

   Since X’s birth, I have been a daily part of her life.  I accept that [the mother] has always been more directly involved with X’s daily routine than me, but my concern is that X be allowed to have a meaningful relationship with me as we are no longer living under the same roof and there is a significant travel distance between us at present.

7. At paragraph 40:

   Before separation, the time I spent with X was virtually continuous.  I participated in her daily life and took an interest in her development.

8. At paragraph 41:

   I would pick X up from child care a couple of days a week.

9. At paragraph 43:

   X and I would also spend time together watching cartoons.  [The mother] and I would take turns putting X to bed and reading her a story.

10. At paragraph 44:

    I would take care of X by myself most Friday nights as [the mother] would often go out with her friends.  On Saturday mornings we would go for breakfast and then go to the park.  On Sundays, I would take X to the markets with [the mother] and we would walk around and get a sugarcane juice while [the mother] got the vegetables.

11. To the contrary, the mother asserts in her affidavit of 15 April 2019 at paragraph 27(e):

    [The father] was engaged in full time work and weekend sporting commitments during our relationship.  He often drank Saturday nights, resulting in him feeling hungover for a large portion of the next day.  As such, [the father] spent minimal time with X each week and he rarely spent time with X alone.

12. At paragraph 27(f):

    …during our relationship, I recall that when [the father] returned home from work, he often lay on the couch and spent many hours scrolling on his mobile phone rather than engaging with X.

13. At paragraph 28:

    During the time that [the father] and I were in a relationship, I was primarily responsible for caring for X as deposed below.  [The father] was often focused on meeting his own day-to-day needs and hence he did not usually attend a meeting X’s emotional or physical needs.

14. As the evidence given by the father is more specific as to times, days and activities than the general statements made by the mother, I prefer in this regard father’s evidence and I find that based upon the time spent together by the father and X prior to the parents separation, there was a meaningful relationship between them at the time of separation.

15. The father has had limited occasions of spending time with X since separation, particularly since 9 November 2018 when the mother and X relocated to City A. I accept, based upon the evidence of the father in his affidavit of 13 May 2019, the ease with which X moved between her parents on 4 and 5 May 2019. This is not contradicted by the mother in her affidavit of 10 May 2019, that there is still a meaningful relationship between X and her father. 

16. The mother’s evidence in relation to X being “emotional, clingy and unsettled” when returning from the father’s care on 4 May 2019, is related specifically by her to the presence during X’s time with her father of his new partner, Ms F, and not to X’s sense of ease spending time with her father.

17. There is obvious benefit to X in maintaining and having opportunity to further develop a meaningful relationship with her father. To lose that relationship would leave X in a situation of having the involvement of only one parent in her life, and would deprive her of a lifelong father figure. 

18. Far from there being detriment to X in maintaining and developing a meaningful relationship with her father, it is inherent in the evidence of the mother, and in the parts of her affidavit that are not evidence but are in the nature of submissions, that her only complaint about the father’s parenting capacity is as to what she asserts as being his lack of effort to firmly establish, develop and maintain a meaningful relationship with X.  As a complaint, it is logical to assume that the mother, properly, regards it as to X’s benefit and important for X, to have a meaningful relationship with her father.

How does the benefit to X of having a meaningful relationship with both of her parents impact upon the interim relocation issue?

1. The father’s proposal is for X and the mother to return to live in Sydney within a 20 kilometres radius of the matrimonial home address at Suburb D, and for the father to spend time with X each alternate weekend from 4:00pm on Friday until 2:00pm on Sunday, and every Wednesday from 4:00pm until 7:00pm. 

2. The father’s alternative proposal, in the event that X and the mother remain living in City A, is that he spend the second weekend of each month with X in City A from 6:00pm Friday until 2:00pm on Sunday, and the fourth weekend of each month with X in Sydney from 6:00pm on Friday until 2:00pm on Sunday, with a provision to spend additional time with X in City A on any other weekend from 6:00pm on Friday until 2:00pm on Sunday, provided he gives the mother 72 hours notice.

3. Accordingly, under the father’s proposal he would be spending no less time with X if she remains in City A than if she returns to live in Sydney, with the possibility of spending more time with X in City A than if she returns to Sydney, if he is able to get himself to City A on any weekends outside of the second and fourth weekends of the month.

4. On either proposal, and assuming that the father does not take advantage of the extra weekends in City A by giving notice to the mother, the father will be able to maintain and develop his meaningful relationship with X even though the time proposed by him with her is less than what would be regarded as substantial and significant time under the Act.

5. The mother’s proposal is that X remain living in City A and the father spend time with her from 9:00am until 3:00pm on each of Saturday and Sunday each alternate weekend, with additional communication between the father and X by Skype or FaceTime on Tuesday, Thursday and Sunday at 6:00pm, and other times as agreed between the parties from time to time.  In addition, the mother proposes that she facilitate X spending time with her father in Sydney for up to 4 occasions each year on dates and times agreed between the parties.

6. Essentially, the difference between the parties competing proposals is the cost and other inconvenience entailed in travel by the father in one direction, and by the mother and X in the other direction, between City A and Suburb J, and that the mother’s proposal provides no overnight time to the father, but only daytime on Saturday and Sunday.  The regularity of the proposed time is basically the same in each of the proposals whether X continues to reside in City A or returns to reside in Sydney.  On any of the proposals, the meaningful relationship between X and her father can be maintained and developed.

Is there any matter giving rise to a need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (a risk)? 

1. If there is such a need due to the presence of any risk factor or factors, that need is to be given greater weight than the benefit to X of having a meaningful relationship with both her parents.

2. Inherent in the father’s alternate proposals is his acceptance that there is no risk to X in her mother’s care.

3. As referred to above, the Notice of Risk filed by the mother does not assert any risk to X arising from her being subjected to or exposed to abuse or family violence.  She does not allege any risk to X from abuse of drugs or alcohol by any party or from any serious parental incapacity, but does allege a risk to X on the basis of what she asserts is a mental health problem affecting the father. 

4. The evidence presented by the mother in support of the contention in her Notice of Risk is contained in paragraph 29 of her affidavit of 15 April 2019:

   I am also concerned about [the father’s] current mental state and the impact that his mental health may have on his ability to care for X.  I hold this concern in circumstances where:

   (a) On 23 August 2018, [the father] said to me words to the effect:

   I have thought about driving off the road or driving into a truck so many times.  I just don’t want to be here anymore.

   (b) In early February 2019, I observed [the father] to upload a post on Facebook which referred to the definition of suicide against the definition of suicidal.  This post concerned me given the comments [the father] has previously made to me.  Prior to this, [the father] posted another concerning image of a clown drinking alcohol. 

5. The mother annexed a copy of the Facebook post of the “clown drinking alcohol” to her affidavit as annexure “I”.

6. As stated above, where I reviewed the evidence of the parties, and in particular this evidence, I found that the mother did not provide a basis for a finding that there is a risk to X from any mental health issues in the father’s care. 

7. The mother proposes orders that would have X in the sole care of the father for six hours on Saturday and for six hours on Sunday.  The mother does not propose that this time be supervised in any way.

8. I find in relation to the primary considerations, that there is benefit to X of having a meaningful relationship with both of her parents and that there is no need to make any parenting orders to protect X from physical or psychological harm. 

9. I find that there is no risk element in this matter.

Additional Considerations

1. Turning to the additional considerations:

Any views expressed by X

1. I do not have any evidence of views expressed by X. 

2. X is currently four years and four months of age and any views expressed by her would not be accorded any significant weight in determining what orders should be made in her best interests.

The nature of the relationship of X with each of her parents and other persons, including any grandparent or other relative of X

1. I have made findings in relation to the nature of the relationship X has with each of her parents in considering the primary consideration relating to the benefit of X having meaningful relationship with both of her parents. 

2. As with that primary consideration, this additional consideration is particularly significant in terms of an interim relocation matter, and on the basis of my discussion of the primary consideration I find that there is nothing to lead me to find other than that X has a close and loving relationship with each of her parents and that she will be able to maintain those relationships whether she lives with her mother in City A or lives with her mother in Sydney.  In either event, X will be able to spend time with her father, subject to the inconvenience of travel.

3. I have the affidavit evidence of X’s paternal grandmother who deposes as to her availability to assist the father with X’s care. The paternal grandmother also deposes to one occasion when, at the parents’ request, she cared for X overnight. She does not provide any other evidence of the nature of her relationship with X.

4. An important consideration arises from the evidence of the father’s new partner, though to the present time not a cohabiting partner, Ms F. 

5. In her affidavit of 9 May 2019, Ms F deposes:

   I am currently pregnant, and [the father] and I are expecting our son to be born on or about … 2019. 

   After our child is born, [the father] and I plan to live together with our son at [an address in Suburb J]. I will commence maternity leave on … 2019 and will not return to work until … 2020.

6. The father also deposes in his affidavit of 13 May 2019:

   Ms F is pregnant with our child, which is due on or about … 2019.

7. Accordingly, it is anticipated that X will have a half sibling in her father’s household sometime around … this year.  In the event that the father’s proposal is found to be the arrangement best in X’s interest, then X will be able to spend time with a new baby brother on the second and fourth weekends each month. 

8. If the mother’s proposal is found to be in X’s best interest, then other than on the up to four occasions each year in which the mother would facilitate time between X and her father in Sydney, any time between X and her baby brother would necessitate the baby being brought to City A.

9. In view of the consideration of the nature of the relationship to be established between X and her half-sibling, I find that it is in X’s best interest that whatever parenting orders are made, there be definite opportunity for X to spend time with her father, and therefore with her new half-sibling, in Sydney on a regular basis, and at least monthly.

10. In the mother’s affidavit of 10 May 2019, at paragraph 8 she deposes:

    I continue to acknowledge the need for X to have a meaningful relationship with [the father’s] extended family and of course, [the father]. I am also supportive of X having a relationship with Ms F, if [the father] and Ms F are in a committed relationship.

11. I find that the only reasonable manner in which X can continue to have a relationship with the father’s extended family, and can develop a relationship with Ms F, given the impending birth of her first child, is by spending time with the father in Sydney.

The extent to which each of X’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to X, and spend time with X, and communicate with X.

1. The only major long-term issue that has arisen for decision between the parents is in relation to the mother’s wish to relocate her own and X’s place of residence to City A.

2. On the uncontested evidence, the mother consulted the father about the proposed move, it was discussed, the father acquiesced in the move and maintained that acquiescence up to and after the move taking place on 9 November 2018. 

3. This is not one of those cases referred to by Her Honour Justice Boland in Morgan & Miles, when Her Honour said at paragraph 55:

   [55] It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.

4. And at paragraph 61:

   Cases….where trial judges were required to determine interim parenting arrangements where one party sought to relocate, or had unilaterally relocated shortly before the hearing … 

5. This was not a unilateral relocation by the mother of X’s place of residence, but a relocation after full disclosure and consultation and receiving, on at least two occasions on the mother’s evidence, and on at least one occasion on the father’s evidence, his specific acquiescence to the move. 

6. It was only after the move had occurred that the father reconsidered the matter and expressed a wish that the mother and X move back to Sydney.  It was some four months after the relocation that the father commenced these proceedings. 

7. I find that this aspect of the case assumes considerable importance in evaluating the competing proposals of the parties.

8. There is disputed evidence between the parties as to the efforts made by the father to spend time with and communicate with X following separation, and it is not open to me to make a finding on that evidentiary issue following interim hearing.  In this regard, I note the Full Court authorities on the caution to be exercised by trial judges in making findings on matters of contested or disputed evidence in interim hearings.[14] 

   [14] See Chapa & Chapa (2013) FLC 93-538; Goode & Goode at [68]; Eaby & Speelman (2015) FLC 93-

   654 at [19] and Banks & Banks at [46] to [50].

The extent to which X’s parents has fulfilled, or failed to fulfil, their obligation to maintain X

1. The father deposes that he currently pays child support as assessed by the Child Support Agency for X. 

2. In his Financial Statement sworn 9 May 2019, at Item 31 he gives evidence that the current assessment is $140.00 per month dated from 30 April 2019, and that accordingly, he pays the sum of $35.00 per week by way of Child Support. 

3. The mother, in her Financial Statement sworn 16 April 2019 at Item 13, asserts that the amount of Child Support required to be paid by the father for X is $8.00 per week and that she receives a sum of $8.00 per week.

4. Other than any Child Support provided to the mother by the father, X is fully financially supported by her mother, with the assistance of her maternal grandmother, as referred to in paragraph 14(d) of the mother’s affidavit of 15 April 2019.

1. I do not find that this additional consideration assists me in evaluating the proposals of the parties other than as an element of the additional consideration to be examined below of the practical difficulty and expense of X spending time with her father under the mother’s proposal, and under the father’s proposal if X remains living in City A.

The likely effect of any changes in X’s circumstances, including the likely effect on X of any separation from either of her parents or any other child, or other person with whom she has been living.

1. On the evidence of both parties, X has not had opportunity to spend much time with her father since the parties separated in August or September 2018.

2. X has been residing in City A since 9 November 2018.  To the date of the interim hearing on 17 May 2019, X had been residing in City A for six months.  To the date of interim orders to be made in consequence of these reasons, X will have been residing in City A for ten months.

3. There is no evidence to indicate what effect, if any, orders being made in accordance with the father’s proposal requiring X and the mother to move back to Sydney will have on X.  Such orders will effectively separate X from her maternal grandmother with whom she has been living since the move to City A by the mother and X.  Whilst the move to City A was a change to X’s circumstances in early November 2018, and a relocation back to Sydney will be a change in X’s circumstances as they have been for the past ten months, it is the effect of any change occasioned by orders to be made in accordance with the competing proposals of the parties that is most relevant in this consideration. 

4. If the circumstances under consideration is the amount of time that X spends with her father, then the proposal of the father would not work any significant change to X’s circumstances whether she returns to reside in Sydney or remains in City A.  The alternatives would certainly cause a change to the father’s social and financial circumstances if the accepted proposal was either the mother’s or the father’s alternative proposal, that is, remaining in City A.

5. In examining this consideration I remain mindful that the move by the mother and X to reside in City A on 9 November 2018 was not a unilateral decision by the mother, but was with the acquiescence of the father.  X’s circumstances were changed at the time of the move and she has lived with the change for six months up to interim hearing, and for ten months up to whatever interim orders are made at the end of these reasons. 

6. On the evidence available on interim hearing, I am not able to make a finding as the likely effect of any further change in X’s circumstances by her return to live in Sydney in line with the father’s proposal. It may be reasonable to suspect that one effect of that change will be the communication to X of the unhappiness in her mother in being forced, on the basis of the father’s proposal, to make that change.

The practical difficulty and expense of X spending time with and communicating with her father and whether the difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This is one of the main considerations in any interim relocation matter.  I have not been provided with evidence by either party as to the time and expense involved in either travel by car, train or plane between Sydney and City A. 

2. Inherently, time and expense of travel will be incurred by either party in having X travel between those places, and in travel by each of the parents between.

3. There is practical difficulty involved for the father in him having the time available to travel to City A and back, by whatever means, whilst being full-time employment.  There is also practical difficulty for the mother involved in travel to Sydney and back whilst she, also, is in employment, though it is not clear from her affidavit of 10 May 2019, at paragraph 5, whether that employment is full-time or part-time. 

4. The practical difficulty is eliminated for both parents if the mother and X are ordered to return to live in Sydney in accordance with the father’s proposed orders.

5. There is a greater expense involved in travel by either parent and X, between City A and Sydney, Sydney and City A, by whatever means of conveyance. The mother seeks an order that she will contribute half the cost of the father’s flights to City A, in the event he chooses to fly, every two weeks up to a total cost of $100, provided the father pays for the flight at first instance. There is some ambiguity in the proposed order, but I interpret it to mean that the mother will contribute one half of the cost incurred by the father in travelling to City A and back each fortnight, up to a maximum of $100 for each occasion.

6. I point to the second part of this additional consideration, whether the difficulty and expense involved in the father spending time with X in City A, or X spending time with the father in Sydney if she continues residing in City A, will substantially affect X’s right to maintain personal relations and direct contact with her father on a regular basis.  On the basis of the competing proposals of the parties, where the father proposes that in the event that X remains living in City A he spend time with her for the same amount of time per month as if she was living in Sydney, and the mother proposes that the father spend time with X in City A each alternate weekend, I find that the difficulty and expense involved would not substantially affect X’s right to maintain personal relations and direct contact with her father on a regular basis if she remains living in City A, provided orders are made that spread the burden of the difficulty and expense between the parties.

7. How this additional consideration stands in comparison to the other primary and additional considerations regarding a determination of what orders should be made in X’s best interest, will be the subject of a finding later in these reasons.

The capacity of each of X’s parents to provide for her needs, including emotional and intellectual needs.

1. Despite the evidence of the mother casting doubt on the father’s parenting capacity discussed earlier in these reasons, I find on the basis of all of the evidence, carefully considered, that both the father and the mother have the capacity to provide for X’s needs, including her emotional and intellectual needs.

2. Whilst the mother may have had prior to separation, and has certainly had after separation, the greater practical experience in this regard, I do not find the mother’s evidence leads me to any conclusion that the father is not capable of so providing for X during the limited periods of time he would spend with her and have her in his care under any of the competing proposals.

3. I find that the time the father would spend with X in his care will provide opportunity for him to develop and increase his parenting capacity.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of her parents

1. I do not have any evidence on which to make a finding about X’s level of maturity and not much evidence in relation to her lifestyle and background, other than that her lifestyle would seem to be the normal lifestyle of a child of her age living in a one parent family and household with one of her grandmothers.

2. As mentioned earlier in these reasons, I note the indication in the father’s Initiating Application and Amended Initiating Application that he has Aboriginal heritage, and accordingly, X would have Aboriginal heritage. 

3. I am not given any evidence outside of their bare indication in the originating document about this element. It is a very important element, as it relates to X’s culture and whether or not she has been, or will be, exposed to and given the benefit of participation in relevant Indigenous culture.

If X is an aboriginal child or a Torres Strait Islander child

1. I have addressed this consideration earlier in these reasons. Given the lack of any evidence touching this I cannot make any finding in relation to this additional consideration.

The attitude to X and the responsibilities of parenthood demonstrated by each of X’s parents

1. Once again, the difficulty in considering each of the parent’s attitude to the responsibilities of parenthood is found in the conflicting evidence between the parties, as to the mother’s attitude to the father’s relationship with X according to his evidence, and the father’s attitude to making sufficient effort to spend time with and develop his relationship with X.

2. I find that this additional consideration does not assist me in evaluating the competing proposals of the parties and determining what orders should be made in X’s best interest.

Any family violence involving X or a member of X’s family, and if a family violence order applies, or has applied, any relevant inferences that can be drawn from the order

1. On the evidence, there is no issue of family violence.

2. There are no family violence orders that apply or have applied between the parties.

Parental Responsibility

1. Having considered the matters set out as the primary considerations and secondary considerations in section 60CC, I must determine what interim parenting orders should be made with X’s best interest as the paramount consideration.

2. As I will be making parenting orders, I must turn to section 61DA of the Act, which provides that when making a parenting order in relation to X I must apply a presumption that it is in the best interests of X for her parents to have equal shared parental responsibility for her, unless there are reasonable grounds to believe that one of X’s parents has engaged in abuse of X or has engaged in family violence, in which case the presumption does not apply.

3. Pursuant to section 61DA(3), as I am making interim parenting orders, the presumption applies unless I consider it would not be appropriate in the circumstances for the presumption to be applied at this time. If the presumption applies it may be rebutted by evidence that satisfies me that it would not be in the best interests of X for her parents to have equal shared parental responsibility for her.

4. From the time of X’s birth, her parents have each had parental responsibility for her pursuant to section 61C of the Act. There are no grounds to believe that either of X’s parents has engaged in abuse of X or of any other child who at any time was a member of the parent’s family, or has engaged in family violence.

5. I am not aware, on the evidence, of any circumstance that renders it inappropriate to deal on an interim basis with parental responsibility. Accordingly, I find that the presumption in section 61DA applies and I will make an order that the parties have equal shared parental responsibility for X.

6. As I will make an order for equal shared parental responsibility, I must give my attention to section 65DAA, as outlined earlier in these reasons.

Would making an order that X spend equal time with each of her parents be in her best interests? 

1. In consideration of the primary and additional considerations set out in section 60CC, I find that on the interim basis, it is in X’s interest that I not make an order that X be returned to live at the former matrimonial home address at Suburb D, or within a twenty kilometre radius thereof, but that she remain living with her mother in City A.

2. In phrasing the matter this way, I am aware that taken literally, the orders sought by the father would require an order that the mother return to reside at the Suburb D address, or within the twenty kilometres radius thereof, and that X live with her mother.  However, the matter is put as in X’s best interest to continue to live with her mother, it is not in contest between the parties that X will continue to live with her mother, and no order will be made for her mother to return to the Sydney area from City A.

3. The father has not sought an order that X spend equal time with each of her parents, even in the event that X resides back at the Suburb D address or within a twenty kilometre radius thereof.  The father does not present, on the interim basis, a case that indicates that he is in a position to have X in his care for equal time. 

4. Beyond it not being in X’s best interest, in view of my consideration of the section 60CC matters and it is my finding that it is not in X’s best interest to be returned to live in Sydney, it is therefore not reasonably practicable for X’s parents to share her care on an equal time basis. In fact, it is totally impracticable for X to spend equal time with her parents. That being the case, I do not need to consider making an order to provide for X to spend equal time with each of her parents.

5. Having found it is not appropriate to make an order for X to spend equal time with her parents, I must then consider whether it is in X’s best interest to spend substantial and significant time with each of her parents. If it is reasonably practicable for X to spend substantial and significant time with each of her parents, I must then consider making an order to that effect. 

6. The father’s proposed orders in relation to his time with X are put in the alternative, depending on whether X resides in Sydney or City A. The time the father seeks to spend with X if she returns to reside in the Sydney area is a weekend from 4:00pm on Friday until 2:00pm on Sunday, and every Wednesday from 4:00pm until 7:00pm. Accordingly, the amount of time sought by the father in that regard does not amount to substantial and significant time as outlined in section 65DAA(3).

7. In the event that X remains living in City A, the time the father seeks is on the second and fourth weekend of each calendar month from 6:00pm Friday until 2:00pm on Sunday, and another weekend if he is able to get himself to City A.

8. Given that the father is not available due to work commitments outside the times that he proposes to spend time with X, in either Sydney or City A, it is not currently in X’s best interest to make an order that she spend substantial and significant time with each of her parents. 

9. In any event, given the father’s work commitments and the distance between Suburb J and City A, it is not reasonably practicable to make such an order.

What orders in relation to time with her father are in X’s best interests?

1. The mother seeks orders that the father spend time with X on all occasions in City A, and for daytime time only. 

2. The father seeks orders that in the event that the mother, and therefore X, remains living in City A, he spend time with X on the second and fourth weekend of each calendar month from 6:00pm on Friday until 2:00pm on Sunday, on the second weekend with changeover occurring at the start and finish at the mother’s residents in City A, and on the fourth weekend with changeover occurring at the father’s residence at the start and finish. 

3. If the father finds himself able to spend additional time with X on one other occasion per calendar month from 6:00pm on Friday until 2:00pm on Sunday, with changeover to occur at the mother’s residence in City A.

4. After my consideration of the matters referred to in section 60CC, I find that it is in X’s best interest to spend overnight time with her father for two consecutive nights on each occasion so as to enable the meaningful relationship between them to be maintained and to develop.

5. I find that there is no risk element necessitating the father’s time with X being restricted to daytime hours only. Having found that it is in X’s best interest to remain living with her mother, and by not requiring the mother to return to reside in the Sydney area, I also find that it is in X’s best interest that she spend time with her father in accordance with the orders sought by him in the event that the mother remains in City A, and for the order sought by the mother in relation to communication between X and the father, and in relation to a contribution by the mother to the father’s travel costs as proposed by her.

6. Accordingly, make the orders set out at the start of these reasons.

I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Judge Morley

Date: 2 October 2019