Nye and Yang

FAMILY COURT OF AUSTRALIA

NYE & YANG

[2009] FamCA 1179

FAMILY LAW – CHILDREN – With whom a child lives - Relocation
FAMILY LAW – CHILDREN – With whom a child spends time
FAMILY LAW – CHILDREN – Best interests

Acts Interpretation Act 1901 (Cth)
Child Support (Assessment Act) 1989 (Cth)
Family Law Act 1975 (Cth)

A & A (Relocation Approach) (2000) FLC 93-035
Bolitho & Cohen (2005) FLC 92-224
McCall & Clark (2009) FLC 93-405
Sealy & Archer [2008] FamCAFC 142
Taylor & Baker (2007) FLC 93-345
U & U (2002) FLC 93-112

APPLICANT:

Ms Nye

RESPONDENT:

Mr Yang

FILE NUMBER:

PAC

3275

2007

DATE DELIVERED:

20 August 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

20 - 22 October 2008

19 - 20 March 2009
7 - 8 July 2009
19 - 20 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Harris

SOLICITOR FOR THE APPLICANT:

Barber & Massey

COUNSEL FOR THE RESPONDENT:

Mr Heazlewood

SOLICITOR FOR THE RESPONDENT:

Michael Jokovic & Associates

Orders

That all existing parenting orders in respect of the child K, male, born … February 2006, be and are hereby discharged.
That the parties have equal shared parental responsibility for the subject child.
That the child shall live with the mother.
That the mother be permitted to relocate with the child to Perth but not before ten days from the date of these orders.
That the father shall spend time with the child as follows:
(a)From 9am on Saturday, 22 August 2009 to 6pm on the following Saturday, 29 August 2009.
(b)That until the mother leaves Sydney, the father shall spend time with the child in each week from 6pm Thursday until 6pm Sunday commencing on 3 September 2009.
(i)For this purpose, the father is to collect the child from the mother’s residence at the commencement of each such period and return the child to the mother’s residence at the expiration of each such period.
(c)From the time of the mother’s actual arrival in Perth and until the child commences school, for each sixth weekend from Friday to Monday. The precise times for such periods are to coincide with the transport arrangements that will need to be made for the child.
That the mother shall immediately upon arrival in Perth notify the father in writing of the date of arrival and the six weekly time shall be calculated from the date notified
That upon the child commencing school, he shall spend time with the father as follows:
(a)For the whole of the school holidays between first and second, and third and fourth school terms;
(b)For one half of the December-January holidays in each year.
(i)For this purpose “first half” shall mean the period commencing on the day immediately after the last day of term and shall conclude on the Saturday nearest the mid point of those holidays. “Second half” shall mean the period commencing on the day marking the midpoint of the holidays and concluding on the Saturday falling immediately prior to the child’s return to school.
(ii)The child shall spend time with the father for the first half in years ending in an odd number and for the second half in years ending in an even number.
That the father may, upon giving one month’s notice in writing to the mother, spend a period of up to one week, on no more than four occasions in each year, with the child in Perth until the child commences school. Once the child has commenced school, and upon giving one month’s notice in writing to the mother, for no more than four weekends in each year in Perth.
That the person to whom the child is travelling pursuant to these orders, at the commencement or expiration of any such time, shall provide to the other parent tickets for the child and any accompanying person to travel with the child at that parent’s cost no later than fourteen days prior to the date of actual travel.
That until further order, both MR YANG, the father, and MS NYE, the mother, and their servants and agents are restrained from taking or sending or attempting to take or send the child K, male, born … February 2006 from Australia.
That the Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
That the Registry Manager shall immediately notify the Marshal and the Australian Federal Police Family Law Team at Sydney Airport of these orders by telephone and shall as soon as possible provide a copy of these orders to the Marshal, the Australian Federal Police and the NSW Police.
That the Court requests that until further order, the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
That all outstanding applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six days from this date.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAR 3275 of 2007

MS NYE

Applicant

And

MR YANG

Respondent

REASONS FOR JUDGMENT

Background

The matter concerns the future living arrangements for the parties’ child, K, who is aged four. The child presently lives with his mother in Sydney and spends time with his father at weekends in accordance with orders of this court.
The mother now effectively seeks the permission of the court to move with the child to live in Perth with her fiancé, Mr L and her other son, N. It is as I understand it, her proposal that she would pay for K to travel to Sydney to see his father on a number of occasions each year.
The father’s case as I understand it, is that the child live with him in the event that the mother moves to Perth but, and it seems to be a very secondary proposal, in the event she remains in Sydney, then the parties should have the child live with them for equal periods of time. A further possible outcome was that the parents might both live in Perth and share the care of the child in that place. It was conceded that on the evidence, this was not likely.
The reason I identify these proposals, is that I believe that having regard to the High Court’s decision in U & U[1], a court in a situation such as this, is not bound by the position taken by the parties. Rather the Court must examine all possible proposals in the best interests of the child and in the situation that exists. Accordingly, I believe I must consider matters that are not put by the parties, such as the father living in Perth as a possible outcome of these proceedings. Of course, there is no way that I can order the father to relocate to Perth.
[1] (2002) FLC 93-112

Brief Background

A brief background to the matter is as follows:-
a)The husband was born in 1978 and the mother in 1974;
b)The parties commenced cohabitation in about March 2004 and married in 2005;
c)K was born in February 2006; and
d)The parties separated on 19 April 2006.
e)These proceedings were initially commenced in the Local Court by the father. They subsequently were transferred to this court and the mother filed, how I am not quite sure, an application and thus became the applicant in these proceedings;
f)Her position was set out in an amended application for final orders filed on 7 October 2008. The father for his part, filed a response to the orders sought by the mother on 10 October 2008;
g)The position of the parties and each of them however, has been set out first in a document handed to me on behalf of the father, which is described as the father’s last proposal, and the mother’s proposal, which I still take to be as clearly outlined in her amended application.

The Parties’ Affidavits

The parties documents that they each rely upon in these proceedings are as follows:-
a)The wife filed an affidavit by herself on 7 October 2008 and a statement of financial circumstances which does not particularly concern me in this stanza of the hearing on the same date; and
b)She filed a further affidavit on 12 March 2009 and an affidavit of Mr L, her fiancé on 16 March 2009.
c)The father for his part, filed and relied upon an affidavit of himself of 10 October 2008, an affidavit of his mother, filed 10 October 2008, an affidavit of his sister, filed 10 October 2008, a statement of financial circumstances also of 10 October 2008 and a further affidavit of 17 March 2009.

The Family Consultant’s Report

In addition to the material of the parties, there was in evidence a report of Mr G. That report was dated 3 September 2008. Regrettably, for various reasons including Mr G leaving the court, the report was not updated during the course of the proceedings.

Existing Orders

The court made a number of orders in this case.
Firstly, on 10 July 2007, there was an order made for the father to spend specified time with the children.
On 26 July 2007, an order was made for the mother to travel to China.
On 7 May parenting orders were made.
On 4 June orders were made for the child to spend each weekend with his father from 10 am Saturday to 10 am Sunday.
On 28 October, there was an order made for the child to spend time with the father each first and third weekend in each four week cycle from 6 pm Friday to 6 pm Sunday and at other times on the other weeks.

The Wife’s Case

The wife’s case before me as I understand it, is that she must live in Perth with her present partner and their child, N. She tells me that Perth is the place where she wishes to bring up her children and have her family life.
I am not made particularly aware of any specific criticism she has of Sydney. The fact of the matter is, that the husband and wife in this case, purchased a home in Perth as part of their long term family plans. As I understand it, that purchase was completed on 22 February 2006. By virtue of a property settlement that has been entered into between the parties, the husband no longer has any interest in that home but as I understand it, her wife and her present partner do. It is her case that her present partner will support her in various ventures which he is interested in undertaking. She asserts that this will be an appropriate environment in which the child K would be raised. She asserts that it is appropriate that the child travel to Sydney from time to time to see his father or the father can travel to Perth to spend time with the child.
The parties each criticise the other for their care of the child. Although to my mind, there is not very much in these criticisms. The father’s most recent criticism that the child was hurt by the wife’s partner or the child’s step-father to the extent that he fell and hit his head on the floor causing as it were, a double injury, I find hard to accept. Not because of what is said, but because of the fact if it was as serious as the father seems to assert it was, then to my mind, no appropriate action was taken in respect of it.
The parties certainly do not believe in a great deal of restraint when it comes to involving themselves in emails. Their level of communication is clearly poor.

The Husband’s Case

The husband says that the child should live with him in Sydney. He says he can obtain family help to care for the child. He proposes the child see the mother as set out in his documents. As I have already identified, the issue of the mother remaining in Sydney, is something that has come very late in the course of this case and as I will return to later, it would appear to me, not from the lips of the mother.
The father concerned me, and I will return to this shortly, in the presentation of his case and particularly in answering questions designed to elicit from him just what his situation and his proposals for the future were. However, clearly and at all times, he wishes his son to live with him and, as a possible alternative, that the mother remain in Sydney and the parties share the care of the child.

The Hearing before Me

The matter proceeded before me over a number of days and, I should add, in a number of different tranches. The matter was prolonged by interpretation difficulties, and I would record my lack of confidence of interpreters who had become involved in the matter.
I have heard evidence from the following persons and in this order: the mother, with an interpreter, on days 1, 2 and 3 of the hearing; then on days 4 and 5, the mother, the father, the mother again, and Mr G. The interposition of the mother and father was caused by interpreter difficulties. Then, on days 6 and 7, I heard evidence from Mr L and the father, and on the last two days - this being the last of those days - I heard evidence in order from the father, his mother, and his sister, both of whom gave evidence with an interpreter.
The mother gave her evidence at all times through an interpreter. Her evidence was that she was determined to go to Perth, even if it meant leaving K behind. Indeed, in her own evidence, the mother has said nothing to contradict this stance. The question of whether there might be a change of heart or a change of view has come entirely from evidence given by Mr L when he was in the witness box. The mother was cross-examined extensively about her proposals for work in Perth. She spoke of making inquiries about obtaining a franchise arrangement for material to be imported into Australia. Her evidence in this regard I found difficult to follow and even more difficult to understand. Clearly, when she gave her evidence, her relationship with Mr L was one where they remained engaged, were planning marriage, and were certainly planning to live together as soon as the mother was able to leave New South Wales and go to Perth.
The mother was cross-examined at length in the second tranche of the hearing about moving from D to R in the face of an order. She explained that in a number of fashions. She said that if the move was of no effect on the child, she could change. She said that she did not know that the order continued past a certain date. She further said that she could not contact her solicitor. I am not satisfied that she did not simply move because it suited her. However, it is clear that the father continued to see the child in accordance with times and dates provided for by the order, notwithstanding the move.
The wife gave some evidence that the parties had gone to Perth, had liked it, and had been able to purchase a property. I am satisfied, notwithstanding the husband’s assertion that he was more or less dragged into it by the wife, that it was the intention of both parties to acquire that home and thereafter live in it as their family home.
The wife’s partner gave evidence of his intention to start a business that would support the mother and the now two children and himself that comprise his family. He gave detailed evidence as to his attempts to investigate the acquisition and conduct of a franchise to operate in Perth. He said he had made several inquiries about franchise and had recently been shown a new location that might be available.
Documents were produced from the company P Proprietary Limited, in which the husband is involved with a number of his friends and acquaintances. The purpose of founding the company, he tells me, is to arrange finance for the venture, because he is unable to self-fund. Reading the minutes of the meeting which became exhibit A, I am concerned that the company and those members of it at a meeting were giving consideration, as at May 2009, to the obtaining of various franchises in Perth or Brisbane. I am concerned that the partner - that is, Mr L - is not as advanced in his dealings as he would tell me.
However, I am satisfied that he has taken the trouble to form a syndicate which has become an incorporated company and is looking into various options. I am not satisfied that Queensland is a major consideration for him, and I am satisfied, having regard to the fact that he and the wife now own real property in Perth, that that is the major subject of their inquiries in an endeavour to obtain a franchise.
I am satisfied that when he chooses to do so, Mr L can provide a comfortable level of income, having regard to his expertise in the IT industry, and I am further satisfied that indeed, he practices that profession whilst waiting to see what happens in respect of the franchise. If the franchise does not come through, on the evidence I have heard, I am satisfied that he can support the family unit of two adults and two children from his other activities.
Having said that, I must record that Mr L was confusing in his evidence and that I found some difficulty in understanding his thought processes as to where he would go from here. So far as I am concerned, I was not able to be as satisfied as I might like to have been in the circumstances, but at the end of the day, I am satisfied he has a capacity to earn income to support the family unit.
The father gave evidence which caused me very considerable concern. His method of giving evidence I have been urged not to hold against him and I will endeavour not to do so. However, his evidence at times caused me to wonder whether he had truly understood the question asked of him. His mannerism, if I may call it that, of trailing off at the end of answers and seeming to defocus from the question, again, was a matter that caused me to wonder if he was indeed able to concentrate and give answers as required.
My main concern was his total uncertainty as to what the future held for him. He did not give any satisfactory explanation or information as to how he would support himself and, if in accordance with his proposal the child was to live with him, how he would support the child. His evidence was, as I understood it, that he had two hours of part-time work a week. This was contradicted by his mother. He tells me that he has very significant credit card debts, for three cards in all, involving particularly the larger two cards at $16,000 and $6000. As I understand it, he has been granted some relief from payment of those debts, and that has been through some form of credit intervention. However, doing the best I can, even if the interest is halted, so as not to accrue further debt, and the rate of interest subsequently reduced, there is no suggestion that his liability for the principal amount, together with interest presently accrued, will be discharged.
He tells me, and I believe, that inquiries that he has made have indicated to him that one of the options open to him financially is that he go bankrupt.
I am concerned that he does not see anything in any way untoward in the fact that he has not, as yet, endeavoured to, and certainly has not obtained, a separate bed for the child, who sleeps with him in two-room accommodation with his parents. He says, of course, that if he is to have the child, he will increase that accommodation and he, his mother, and father will take up new premises. It is his case that his mother is clearly a person who is available to assist him with the care of the child, and I have a concern that it indeed would be his mother rather than himself who would have the day-to-day care of the child if the child were placed with him.
It is a case where the evidence of both parties is that they cannot communicate. It is the evidence of both parties that the only way in which there has been any line of communication available to them is in the form of emails, and without dealing with the emails individually, it is clear that at the slightest provocation by either side, they become quite acrimonious and accusative.

The father’s mother gave evidence as to the assistance that she would provide in caring for the child, and again, I express my concern that it is she, rather than the father, who would be the actual carer, were I to accede to his application. And she also gave evidence of the assistance that her husband could provide financially, firstly by way of acquiring larger accommodation and secondly by means of cash advances to the husband as required. The difficulty for me in accepting that evidence is that the child’s grandmother says that her husband can provide these things, but she does not know his income, or any other basis upon which he could provide that financial assistance.
The husband’s sister gave evidence. I have granted her a certificate. She simply falsely swore an affidavit. She asserted she worked from home in two paragraphs of her affidavit, paragraph 1 and paragraph 18, when clearly she did not. She did this to create an impression of a person capable and available to give assistance if required. I am satisfied that she knowingly did this in an endeavour to bolster her brother’s case. I am unable to accept any of her evidence. I am left concerned that the father must have known that that was the evidence that his sister proposed to give. I am not for one moment suggesting that he was present when she gave instructions to her solicitor, and I am not for one millisecond suggesting that the instructions given were other than her own words. However, one might be concerned that in a matter such as this, the father would want to know, once the affidavits had been sworn, what was being said in support of his case by other witnesses. However, in the circumstances of this case, I am not satisfied that I am able to make a concluded finding that the husband did know. I am, however, left with a real disquiet.
Mr G filed a most helpful report. He gave oral evidence, as I have said, during the course of the proceedings. In that oral evidence he said that the father had no idea of the effect of separation of the child from his mother. He said that the father’s indication to him of what it was he really wanted was unsure. At first, he was under the impression the husband wanted equal shared time, but that he was not sure that that was what he wanted. He indicated the father blamed the mother for separation. He indicated, on observation, the child was more spontaneous with the mother, but got on well with all adults.
He indicated that the attachment to his half-brother, that is N, would be a better attachment if he were able to live with him. He indicated that the child loved both parents, but was more attached to the mother. He indicated that the child would adapt if he was left in Sydney, but he may not be happy and it may take him a very long while. I understood that to be in the context if his mother was in Perth and he was still here. He agreed that it was ideal the child be bonded to his father, but went on to say that this child needs both parents. Indeed, as the proposals then stood, he regarded neither of them as satisfactory.

Factual Background

It seems to me that having made the short findings I have I am able to deal very briefly with the factual background to this matter. I have set out the dates of birth of the parties. I am satisfied they met in 2003 and they commenced a relationship shortly thereafter, marrying in March 2005. It is the wife’s case that in late 2005 the parties had formed an intention to move to Perth and on the material available to me I am satisfied that they were, at least, very interested in moving to Perth.
Early in 2006 they travelled to Perth where they found a property and subsequently purchased that property in February 2006.
That was very shortly before K was born in February 2006. The wife says the parties separated in April 2006, approximately six weeks after the child was born. It is clear that the child remained with his mother since that time. It appears common ground, and I accept, that thereafter there were difficulties with the father seeing the child and these difficulties involved the maternal grandmother to a significant extent. There were also discussions about property.
There was an argument over whether or not the father could spend some time at Christmas in 2006 with the child. The husband asserts there was an arrangement made which the wife subsequently breached. It seems, at some time in early 2006, the wife and Mr L met. The father continued to visit the wife’s premises to see the child and there were difficulties with her parents. There was an altercation apparently on 27 January 2007. The maternal grandmother says that she was assaulted by the paternal grandfather, but it is clear that on 16 March 2007 an apprehended violence order was made against the maternal grandmother.
The wife seems to assert that it was in about April 2007 that she eventually formed an intention to move to Perth. It is clear, as I have said, that in May 2007 the husband filed the first application in these proceedings in the Local Court. Thereafter the proceedings were transferred to this court and the mother filed her application and amending application which enabled her to become the applicant in these proceedings. There were then further difficulties, the husband says, with him seeing the child, the mother being responsible for those difficulties.
In April 2008 the wife and Mr L became engaged. There is no doubt that in August 2008, during the currency of orders made in May, the wife then moved from D to R. Mr L then moved between Perth and Sydney until the present time. That seems to be the background to the matter and I must now turn to the law that I must apply.

The Law to be Applied

Having regard to a decision of the High Court in U & U[2], there are to my mind the potential scenarios that I endeavoured to outline at the commencement of these reasons.
[2] Supra
That is, both parents in Sydney and the child living with each of them for equal or nearly equal periods of time. Next, both parents living in Perth and the child living with them for equal or nearly equal periods of time. Next, the child living with the father in Sydney and spending time with the mother. Next, the child living with the mother in Perth and spending time with the father.
Each of those last two proposals would involve the child travelling the breadth of Australia to enable the child to spend time with the other parent.
I am not aware of any other possible circumstance which could apply to the living arrangements for the child.
There are a number of recent Full Court decisions which provide assistance in matters such as this. One to which I would make particular reference is the decision of the Full Court in McCall & Clark[3].
[3] (2009) FLC 93-405
In that case, their Honours analysed the circumstances of a not dissimilar case to the present. Their Honours referred at paragraph 57 of their judgment to A & A (Relocation Approach)[4] and to the Full Court’s decision in Bolitho & Cohen.[5] Their Honours found that it was discerned that the decision of U & U may have ameliorated the somewhat rigid and/or formulaic approach suggested in A & A. Their Honours in paragraph 58 observed, however, that the amending Act had changed the way in which a court approaches making a parenting order. The court must, unless it is not applicable or rebutted, apply the presumption of equal shared parental responsibility.
[4] (2000) FLC 93-035
[5] (2005) FLC 92-224
The making or the process required to make an order for equal shared parental responsibility necessitates the requirements to consider the matters set out in section 65DAA, which speaks of equal or significant and substantial time. Their Honours made reference to Taylor & Baker[6] in which a differently constituted Full Court said this:
In our view his Honour, the learned Magistrate, dealt with the relocation proposed in the context of his consideration of section 60CC and 65DA at least insofar as it was possible to do so. It should be implicit in our conclusion in relation to this ground that a relocation proposal should continue to be considered and evaluated so far as possible in the context of making of the necessary findings in relation to the relevant section 60CC factors and, as we will explain, how such a proposal needs to consider the matters set out in section 65DA.
[6] (2007) FLC 93-345
Their Honours in McCall[7] then made reference to the decision of Sealy & Archer[8]. Whilst it has been recognised the Act does not provide any express direction or guidance as to the overall manner or order in which the provisions of Part VII must be applied, the legislation does require in 61DA that when a court makes a parenting order it must apply the presumption that it is in the best interests of the child or his or her parents to have equal shared parental responsibility.
[7] Supra
[8] [2008] FamCAFC 142
I should say in this case that it seems to me that the parties concede that there should be equal shared parental responsibility. I am not satisfied that there is material that would make the presumption inapplicable, that is, issues of violence. I am not able to find that the presumption is rebutted by virtue of evidence that I have before me. Clearly the parties do not communicate well. However, in the light of each of them saying they believe there should be equal shared parental responsibility and in the hope that the parties can put themselves in a position where they are able to deal with each other in a proper and appropriate manner, then I do not propose to interfere with the presumption.
I must have regard to a number of matters prescribed by the Act and I will deal with those as they appear in order in the Act. The first of the matters to which I must have regard is section 60B(1), which sets out the objects of the Act of the part and the principles that underlie those objects. The first object is ensuring children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. The second is the protection of children from physical or psychological harm from being exposed to abuse, neglect or family violence.
The principles that underlie the objects (section 60B(2)) are the children have a right to know and be cared for by both parents and have a right to spend time on a regular basis with, and communicate on a regular basis with, both parents.
The next of the matters that I must have regard to is section 60CA, which tells me that in any parenting order I must have regard to the child’s best interests as the paramount consideration.
Section 60CC, then, tells me that I must consider the matters set out in determining what is in the child’s best interests. The first of those is the benefit to the child of having a meaningful relationship with each parent (section 60CC(2)(a)), and the need to protect the child (section 60CC(2)(b)). Their Honours in McCall said at paragraph 109:
The Act does not contain a definition of “meaningful” nor provide any specific criteria to assess how parents have or should have a meaningful involvement.
Their Honours then searched for a proper and workable meaning of the word “meaningful.” Eventually, after having regard to the Acts Interpretation Act1901 (Cth) and various other cases, their Honours said at paragraph 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”).
Their Honours conclude that the preferred interpretation of a benefit to a child of a meaningful relationship is the ‘prospective approach’ although depending on factual circumstances, the present relationship may also be relevant.
Their Honours go on to say that the next subsection requires a court to explore other relationships, and their Honours indicate clearly that this must be done.
Their Honours at paragraph 120 state that had the legislation 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.
It seems to me, therefore, that what the case requires is that a careful examination be made of what is to occur. Clearly, each of the parties in their, if I might call them this, primary applications, posit that the child is best living with them, and thus the relationship with the other parent is going to be largely affected by the distance between them and the cost and expense of travel. However, it is also clear, in my view, that in some cases a meaningful relationship may not require that parent and child see each other every week, or more frequently. “Meaningful” must be looked at in the light of the circumstances that generally surround the parties and the lifestyles and locations in which they would propose to live.
I should say here, and I will return to it later, that to my mind the prospect of the wife remaining in Sydney is not high. I am aware that the husband asserts that the evidence of the wife’s partner that there might be some change of heart on her part. I have not heard that evidence from the mother.
I accept it might also be well and truly open to the father to say that the mother should not be rewarded for taking a hard line and saying that she will go to Perth in any event. However, I have to balance against that the father’s equally hard line in saying, it is just impossible for me to move to Perth, and it is for that reason that I will stay here, and I want the child to stay here with me.
Whilst the father may make criticism of the mother for making that decision (to go to live in Perth with the child) I am satisfied that there was a period of time when the father thought that Perth was a proper and preferred place to live. The parties had purchased a home there, the home which the wife will occupy, a premises which is known to both parties.
It seems to me that if the husband were to assert the wife is trying to present the court with a fait accompli, exactly the same criticism can be made against him in respect of his primary application.
Subsection (b) of 60CC(2) says that I must have regard to the need to protect the child from physical or psychological harm, or being exposed to violence. The only evidence I have of violence are the allegations by the father concerning what he says happened to his son, and, particularly, what he alleges recently happened at the hands of Mr L. I have already dealt with that material, and indicated that I have real concerns that had it been as serious as the father now says he believed it to be, other action would have been taken.
Section 60CC(3) tells me what the additional considerations are. They are (sub-section (a)) any views expressed by the child, and factors underlying those views. The child clearly has expressed no wishes. One would not expect it in a child of this age. However, I do have the material from Mr G that the child appears more comfortable with his mother, although he loves all the adults in his life. That tails nicely into the next consideration, the nature of the relationship of the child with each of the parents, and any other persons (sub-section (b)).
The child has lived his whole life with his mother. I am satisfied that he has a close attachment to her. I am satisfied that the father has a relationship with the child, which is of a differing nature because of the factual situation. I am satisfied that the child loves him, while being more closely aligned with the mother, and I am satisfied that the child loves all of his grandparents. I am concerned as to the relationship of the child, K, with his half sibling, N.
It is made clear, as I have recorded, by Mr G that he is of the belief that the relationship of these boys would be much enhanced by them living together. Of course, if the father were to achieve the situation sought as his second proposal, that the wife remain in Sydney, then it would be possible for the boys to spend a great deal of time with each other. In Perth the boys would be together. If K lived with his father and the mother was in Perth, the boys would spend little time together.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (sub-section (c)) which for convenience I would combine with section 60CC(4), the extent to which a parent has taken the opportunity to participate in decision-making in respect of the child, and has facilitated, or failed to facilitate the other parent in so doing.
In my view, neither of these parents are willing to acknowledge to an appropriate extent, and in the father’s case, at all, the necessity of the involvement of the other parent in the child’s life. The mother thinks that it is proper for the child to see as little of the father she considers appropriate. The father, however, seems to think that there is no need for the mother to be involved at all, and certainly, in view of the evidence that I have heard, has no understanding of the necessity of continuing a relationship between child and mother.
The next sub-section (60CC(3)) deals with change. Whatever happens, there is going to be a significant change in the child’s circumstances. If the mother remains in Sydney, then the father says he should spend equal time with the child. If the mother goes to Perth, on the father’s proposal, the child will live with him, and spend limited time with the mother. On the mother’s proposal, if she goes to Perth the child will live with her, and spend limited time with the father.
All of those situations, as I have said, will require a change. In my view, the most significant of those changes to be considered, however, would be a removal of the child from his mother, which is the effect of that which the father would have put into place with the child living with him in Sydney, on the basis the mother goes to Perth.
Perhaps this is the appropriate place for me to record that I am concerned as to the evidence and whence it comes about the mother’s move to Perth. I am in no way persuaded that the mother sees any value in remaining in Sydney. I have talked about each of the parties by their own actions, as it were, presenting the court with a fait accompli. Neither of them, in my view, obtain any credit whatsoever from the stands they have taken. But they are, indeed, the positions that have been taken.
The capacity of parents and other persons to care for the child (60CC(3)(f)), the mother has cared for the child and has cared for him from birth. The father says this is not so, that the mother was going out all the time and leaving the care of K to her parents. I do not accept that this is so. I am satisfied that the mother certainly had the help of her parents from time to time. It is telling, in the light of that allegation, however, that the father says for the future he, of course, would rely on his mother particularly to assist with the care of the child. There is also the implication, which was part of his case, that his sister would assist him. I have made findings in regard to her evidence.

I am satisfied that if a balancing exercise is carried out, it will be demonstrated that the mother has a better awareness of the child’s needs, particularly including emotional and intellectual needs. I am satisfied that the mother has some inkling as to the necessity of the father and the child having an ongoing relationship. In the father’s case I am satisfied that there is a complete absence of any such understanding.
I am satisfied I do not need deal with the next two sub-sections.
I deal with the attitude to the child and the responsibilities of parenthood (sub-section 60CC(3)(i)). The mother, to my mind, has demonstrated that she knows and acknowledges that the child needs to be cared for, and that an appropriate level of care must be provided. I am satisfied that in the past the mother’s care of the child demonstrates an attitude on her part that is at least appropriate. I am not satisfied that the father has a corresponding attitude. I accept that he wants to spend as much time with his son as possible. However, I am not satisfied that he is anxious to assume the responsibilities of parenthood. Rather, I have come to the view that he wants his child with him so that the child can be cared for by other members of his family. In saying this I am not suggesting for a moment that the father does not love his son. However, I am saying that I am not satisfied on what I have heard and observed that this is a situation where the father wants to take care of the child. Rather, in my view he wants to take possession of the child and then delegate the child’s care to others.
There is no family violence raised that I need consider (section60CC(3)(j)).
I am told that I must consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings (section 60CC(3)(l)). I confess I have always had difficulty with that subsection in whatever form. In my view the appropriate orders are the orders that best serve the interests of the child and that is the only focus that I should have.
Those matters are matters that assist me in coming to an ultimate decision. The next matter that I must move to is section 61DA. That, of course, is the section that deals with the presumption of equal shared parental responsibility. The section has been added by the amendment to the Act. It is clear that that section has the intent of the legislators behind it.
I already indicated that I have found nothing that rebuts the presumption and accordingly, this is a case where the parties will have equal shared parental responsibility. The effect of that is then to take me to section 65DAA, which speaks about the consideration of equal, or substantial and significant time with each parent. The word there is “consider”, and consider has itself been the subject of some attempts at definition. I am satisfied that what I am required to do is to endeavour to take into account the matters dealt with by their Honours in McCall[9] at paragraph 69. Their Honours there say:
However, it appears to us that in dealing with a parenting application involving the relocation -
As is the case here -
Where the presumption applies –
As is the case here -
And an order is made for equal shared parental responsibility, a court must consider whether equal or significant and substantial time would be in the child’s best interests, consider and weigh up all equal time and substantial and significant time regime against all factors having advantages in the relocation proposal, and consider whether an order should be made for equal time in one location, or for the child to reside with one parent in a distant location with such other orders as will maintain the benefit of a meaningful relationship.
[9] Supra
Let me say here again I do not accept that the wife remaining in Sydney is a true reflection of her intentions. Whether it be that she presents some form of fait accompli to the court or not, I am satisfied it is her intention not to live in Sydney. It is not simply a matter of making an order that she remain in Sydney so that the parties can each have the benefit of time with the child, either equal or significant and substantial, that might be open and practically available were she to remain in Sydney. I am satisfied she will live in Perth with her finance and their child whether or not K is permitted to live with them. In my mind the true considerations in this case are whether the child lives in Sydney with his father or Perth with his mother.
If the child remains with his father in Sydney, he will be able to see his father and his grandparents. If he is in Perth, he will be able to see his mother, his brother and his stepfather. I am of the view that what I must do now, having discarded as a real option the prospect of the child remaining in Sydney with both parents living in Sydney and him spending equal or significant and substantial time with each of the parties, is to determine which of the two households will better serve his needs, whilst not for one moment losing sight of the fact that whichever household he is in, he needs to maintain a relationship with members of the other household.
For me to make an order for the mother to have the child live with her or so long as she remained in Sydney, but with the father having the child if she chose not to do so would be to make an order that would by default, I am satisfied, have the child live with the father. I am satisfied that the mother would not remain in Sydney. Both parties have demonstrated stubbornness and lack of ability to see the other party’s view, or indeed to see what is best for the child. Neither party seems to have any real appreciation for the necessity for their son to know and be loved by the other parent. The mother says she does not really think it is necessary for the child to spend a lot of time with his father from now on. The father says that the child does not need to see the mother at all. He appears satisfied if the child were living with him, them that would be the only parental contact he would need.
That leads me to the conclusion that I must go back to the primary and additional considerations and briefly weigh them. When I do so, I am satisfied, as I have already indicated, that the mother has a better attitude to the responsibilities of parenthood than does the father. I am satisfied that the relationship of the child with his mother is closer than with his father. I am satisfied that the mother has a better, albeit slightly better, attitude to facilitating and encouraging an ongoing relationship with the father. I am satisfied that the mother has a greater capacity to provide for the needs of the child.
The father’s proposals do not give me any comfort that if I were to make an order that the child were to live with him, or for that matter spend equal time with him, that he is in a position to make provision to accommodate the child satisfactorily, or to ensure that his emotional needs are met.
I am satisfied that the mother has demonstrated her capacity in the past which is, to my mind, an indication for the future that she can provide proper care for the child. She has cared for the child, and the child, it would seem, in physical aspects certainly, has done well. The father’s proposals are so imprecise that they give me no comfort. Indeed, as I have said previously, my concern is the father wants possession of the child but does not intend to be involved in care of the child, leaving that to his mother.
Accordingly, and not without real misgivings, I have come to the conclusion that the child’s best interests are served by living with his mother, and that she be allowed to relocate to Perth in the not-too-distant future. However, I am satisfied that there still remains the need for the child to have - if I might use my own words - the best meaningful relationship that he can with the father, notwithstanding the child will live in Perth. To that extent, I am satisfied that the mother should not leave for some time - a minimum period of 10 days - and that starting on Saturday, the father should have the child with him for seven days. Thereafter and until the mother moves, I would propose that the child spend time with the father from Thursday evening to Sunday evening, commencing in the following week. This is necessary to enable the relationship of father and son to be maximised for the comfort of the child before the child leaves for Perth.
Thereafter, I propose to order that from the time of the mother’s arrival in Perth and until the child commences school, that each six weeks, the father have time with the child from Friday to Monday. It seems to me that this is not by any means difficult, particularly so far as the father travelling is concerned, in the light of his evidence as to a lack of involvement in work that would otherwise militate against such an arrangement. The issue of payment I will come to in a moment.
I am satisfied that, therefore, once the mother has arrived in Perth, the calculation should be made from that date, and there should be the six-weekly time or times with the child.
When the child commences school, I propose to order that he spends the whole of the short school holidays between first and second, and third and fourth, terms with his father, and one half of the holiday between second and third term. Additionally, I will order that the long vacation be divided into first and second halves, and the husband have either first or second half in accordance with the orders that I will shortly make.
I propose to order that upon the father giving one month’s notice, he shall spend a period of up to one week on no more than six occasions in each year with the child in Perth.
So far as the cost of transport is concerned, I propose to order that the person to whom the child is to travel is to be responsible for payment for the fare of that child and any accompanying person. Appropriate tickets are to be provided to the other party. In other words, if the child is to travel from Perth to Sydney, no less than 14 days prior to the date of travel, the father is to provide to the mother tickets for the child and any required accompanying person or escort. If those tickets are not provided, the child is not to travel. So far as the child returning to Perth is concerned, it shall be the mother’s responsibility to provide tickets for the child and any accompanying or escorting person and to have those tickets in the father’s hands 14 days before the date of actual travel. If she does not do so, the child is not to travel. For the father to travel to Perth, he would be solely responsible for airfares and accommodation involved in so doing.
I accept that these arrangements will impose a financial burden on both parties. However, I am equally of the view that both parents are capable of finding for themselves funds to enable travel to occur.
In any event, once the father gets himself back into employment, any unusual cost of travelling for time with the child may be the successful basis of an application for variation in accordance with the Child Support (Assessment Act) 1989. I am satisfied in the short term on the evidence I have heard that the father has available to him assistance from his family, the extent of which I do not know, to help him to pay for the cost of transportation. Equally, the mother can provide funding for the travel costs that fall to her and indeed they are only slightly more onerous than the arrangements she herself proposed.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate:

Date: 20 November 2009

[2009] FamCA 1179

20 August 2009

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