Oldfield and Kalich - [2009] FMCAfam 1362

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OLDFIELD & KALICH

[2009] FMCAfam 1362

FAMILY LAW – Parenting – relevant time child should spend with the father – mother’s relocation application – question of what school child should attend.

Family Law Act 1975 (Cth), ss.60B, 60CA & 60CC

Goode & Goode (2006) FLC 93‑286
Taylor & Barker (2007) FLC 93-345
Re G (2000) FLC 93-025

Applicant:

MR OLDFIELD

Respondent:

MS KALICH

File Number:

SYC 4172 of 2008

Judgment of:

Cole FM

Hearing dates:

12 & 13 November 2009

Date of Last Submission:

13 November 2009

Delivered at:

Adelaide

Delivered on:

23 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr Connor

Solicitors for the Applicant:

The Argyle Partnership

Counsel for the Respondent:

Ms Boyle

Solicitors for the Respondent:

Karras Partners Lawyers

ORDERS

The parties have equal shared parental responsibility for [X] born [in] 2004 (“[X]”).
[X] live with the mother save as set out in these orders.
[X] live with the father:
(a)for 2010 during the school terms from 8am Monday to 8am Wednesday each week;
(b)for 2011 during the school terms from 8am Monday to 8 am Wednesday each alternate week and from 4pm Sunday to 8am Wednesday every other week;
(c)for one half of the school holidays as follows:
(i)from 3pm on Christmas Eve to 11am on Christmas Day each alternate year, the first year to commence 2009, and 11am on Christmas Day to 3pm on Boxing Day every other year, the first year to commence 2010;
(ii)for one half of the New South Wales School Holidays (except Christmas Eve to Boxing Day), with the parties to agree as to which half and in the absence of agreement the father to have the first half of the even years and the second half in the odd years;
(iii)for the purpose of paragraph 3(c) of this Order, school holidays will be deemed to commence 9am on the date following the last day of school and conclude at 5pm on the day before commencement of school whether or not that day is a pupil-free day;
(d)on Father’s Day from 9am to 4pm (in the event of [X] not being with father);
(e)in the event that [X] is with the father, time with the father will be suspended from 9am to 4pm on Mother’s Day;
(f)from 9:00 to 6:00 pm each alternate Good Friday commencing 2010;
(g)from 9:00 am to 6:00 pm on the third Sunday in February and November each year; and
(h)such other times as agreed between the parties.
Each party shall immediately notify the other party in the event that [X] is hospitalised or suffers any serious injury or illness.
The mother shall inform, and keep informed, the father of [X]’s medical practitioner or practitioners, including address and telephone numbers, and shall irrevocably authorise such medical practitioners to release any reports and information in relation to [X] to the father by such medical practitioner or practitioners upon the father’s request and to discuss [X]’s health with the father (noting that the mother would seek a doctor with a homeopathic background).
The mother keep the father informed about the welfare and education of [X].
For the purposes of these orders and until [X] commences school, the father collect [X] and return her to her mother’s home PROVIDED THAT the mother remains living in the [S] Shire. In the event that the mother moves twenty (20) kilometres or more from the [S] Shire the father shall collect [X] at the commencement of her spending time with the father and the mother shall pick up [X] at the conclusion of her spending time with the father.
For the purposes of these orders and upon [X] commencing school, the father collect [X] from her mother’s home and drop [X] to school PROVIDED THAT the mother remains living in the [S] Shire.
In the event the mother moves twenty (20) kilometres or more from the [S] Shire the father shall collect [X] at the commencement of her spending time with the father and the mother shall pick up [X] at the conclusion of her spending time with the father or, where otherwise agreed between the parties, the father will drop [X] to school.
When [X] is living with the mother, the mother will make [X] available for telephone conversations with the father each Thursday and Saturday at 3pm.
The parties be restrained and an injunction is hereby granted restraining each of them from denigrating the other of them to, or in the presence of, [X] or permitting any other person so to do.
The parties take such steps and do all such actions as are reasonably required to attend upon Ms P, Clinical Social Worker, or such other counsellor as is agreed between the parties, for the purpose of undertaking work to promote [X]’s relationship with her father.
The counsellor nominated by the parties in accordance with paragraph 12 of this Order be provided with a copy of the report of Dr G dated

30 August 2008.
The mother’s application to:
(a)re-locate to Byron Bay;
(b)enrol [X] in a Steiner School in Byron Bay and/or Sydney; and
(c)treat [X] with homeopathic treatment and have the father co-operate with such treatment,
be dismissed.
The father’s application for [X] to be enrolled in the kindergarten at a local public school be dismissed.
The mother be restrained and an injunction is hereby granted restraining her from re-locating with [X] from the Sydney metropolitan area without the written consent of the father.
All applications in respect of children’s issues do otherwise stand dismissed NOTING that orders in respect of property settlement await procedural fairness to be effected.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

SYC 4172 of 2008

MR OLDFIELD

Applicant

And

MS KALICH

Respondent

REASONS FOR JUDGMENT

[X] born [in] 2004 (“[X]”) is the child the subject of these proceedings. [X]’s mother wishes to either:
a)move to Byron Bay and enrol [X] in the nearby Steiner School; or
b)enrol [X] at the Steiner School in Sydney in [G] or [K] and move to reside near that school.
Her father, the applicant in these proceedings, is opposed to this. In addition, he seeks a variation to the current arrangements for [X], giving him, amongst other things, an increase from two to three nights per week with her.

Matters Agreed

The parties have agreed on a number of matters.
This agreement includes orders that:
a)they have equal shared parental responsibility for [X];
b)[X] live with the mother save as set out in these orders;
c)in the event that the mother does not re-locate to Byron Bay, the child live with or spend time with the father:
i)from 8am Monday until 8am Wednesday (the father seeks that this be commenced at 4pm Sunday, however this is opposed by the mother);
ii)for one half of the school holidays as follows:
(A)for one half of the New South Wales School Holidays (except Christmas Eve to Boxing Day) with the parties to agree as to which half and in the absence of agreement the father to have the first half of the even years and the second in the odd years;
(B)for the purpose of this order school holidays will be deemed to commence 9am on the date following the last day of school and conclude at 5pm on the day before commencement of school whether or not that day is a pupil-free day;
(C)an arrangement whereby one party will have [X] on Christmas Eve and part of Christmas Day in one year and on Christmas Day and Boxing Day in the other year, such times to be decided by the Court; and
(D)on Father’s Day from 9am to 4pm (in the event of the child not being with father) and in the event that the child is with the father time with the father will be suspended from 9am to 4pm on Mother’s Day;
iii)each party shall immediately notify the other party in the event that the child is hospitalised or suffers any serious injury or illness;
iv)the mother shall inform and keep informed the father of the child’s medical practitioner or practitioners including address and telephone numbers and shall irrevocably authorise such medical practitioners to release any reports and information in relation to the child to the father by such medical practitioner or practitioners upon the father’s request and to discuss the child’s health with the father (noting that the mother would seek a doctor with a homeopathic background);
v)the mother keep the father informed about the welfare and education of the child;
vi)for the purposes of these orders the father collect the child and return her to her mother’s home provided that the mother remains living in the [S] Shire. In the event that the mother moves twenty kilometres or more from the [S] Shire the father shall collect the child at the commencement of her spending time with the father and the mother shall pick up the child at the conclusion of her visits to the father;
vii)upon the child commencing school the father collect the child from her mother’s home and drop the child to school provided that the mother remains living in the [S] Shire;
viii)in the event the mother moves out of the [S] Shire the father shall collect the child at the commencement of her spending time with the father and the mother shall pick up the child at the conclusion of her visits to the father, or where otherwise agreed between the parties, the father will drop the child to school;
ix)when the child is living with the mother, the mother will make the child available for telephone conversations with the father each Thursday and Saturday at 3pm; and
x)there be an order that neither party denigrate the other to or in the presence of the child.
The mother did seek an order that she be permitted to treat [X] with homeopathic treatment, including homeoprophylaxas, and the father co-operate with such treatment, however this was abandoned in closing submissions by Counsel for the mother in favour of an order regarding medical treatment as set out above but noting that the mother would be seeking a doctor with a homeopathic background.

The evidence

The applicant relied on:
a)his Initiating Application filed on 26 August 2008;
b)his Affidavit sworn on 4 November 2009;
c)the affidavit of his mother, Ms O, sworn on 4 November 2009; and
d)the Affidavit of his cousin, Ms C, sworn on 4 November 2009.
The affidavits of Ms O and Ms C were both accepted without cross-examination.
The respondent relied on:
a)her Affidavit filed on 28 October 2009;
b)the Affidavit of her mother, Ms K, sworn on 27 October 2009; and
c)the Affidavit of Ms F sworn on 30 October 2009.
The Family Report of Dr G was admitted into evidence and she cross-examined.
Each party gave evidence, as did Ms Kalich, the maternal grandmother, and Ms F.
Each party filed and relied on a “Minute of Orders Sought” document.

Agreed background

The chronology of the parties’ relationship has been essentially agreed.
That is:
a)in 2002 the parties commenced co-habitation;
b)[in] 2003 they married and [X] was born [in] 2004;
c)on 28 February 2007 they separated but with the father remaining living in the [E] property with the mother and [X];
d)in February or April 2007 (and it is not necessary to make a finding on this point) the father moved out of the [E] property into his parents’ residence at [W]. The father says he spent time with [X] every Monday and Tuesday until 4pm. The mother says he initially spent time with [X] on an informal basis at the [E] property;
e)in November 2007 the mother advised she intended to re-locate to [M];
f)in February 2008 the mother took [X] to Hawaii for two weeks;
g)on 18 March 2008 the parties attended a mediation session with Ms M and reached agreement for [X] to spend time with the father from 8am Monday until 8am Wednesday (the mother says this had commenced in February 2008) and Thursday afternoons from 3:30pm to 4pm;
h)
on 22 April 2008 the parties attended a further session with

Ms M;
i)in 2007 and for part of 2008 [X] attended Steiner School;
j)on 11 June 2008 the mother, through her solicitors, advised the father’s solicitors that she intended to re-locate to [A];
k)on 2 July 2008 the mother, through her solicitors, advised the father’s solicitors that she intended to relocate to [L];
l)on 18 August 2008 the parties attended another mediation session with Ms M;
m)on 24 July 2008 the mother, through her solicitors, advised the father’s solicitors that she intended to re-locate to [L] in the last week of August 2008;
n)on 26 August 2008 an application was filed by the father seeking orders restraining the mother from re-locating;
o)on 27 August 2008 orders were made by Federal Magistrate Altobelli restraining the mother from re-locating from the Sydney metropolitan area - that Order remains in effect;
p)on 29 September 2008 the parties’ divorce became effective;
q)on 3 September 2009 the parties received the Family Report prepared by Dr G dated 2 September 2009;
r)on 15 October 2009 the parties reached agreement on property matters, those orders currently lying on the Court file pending procedural fairness being confirmed; and
s)on 12 November 2009 this matter proceeded to trial.
The parties accept the recommendation of the Report Writer that they attend upon a counsellor to promote [X]’s relationship with her father.
The mother resides in a unit owned by the maternal grandmother in [C]. The maternal grandmother lives some ten to fifteen minutes or less away. The maternal grandmother on her evidence (which was not disputed) would see [X] two to three times per week.
The father is residing with his parents in [W]. He has been caring for [X] from 8:00 am Monday until 8:00 am Wednesday from on or before the parties reached their agreement on 18 March 2008. (The mother’s evidence is that this arrangement commenced on her return from Hawaii in February 2008).
The father is employed as a [occupation omitted]. He works weekends, with Monday and Tuesday being his days off.
The mother is unemployed. She worked as an apprentice [omitted] some years ago. She sustained an injury (carpal tunnel) and received a worker’s compensation payout. She has had limited employment since then but following [X]’s birth has, in addition to her parenting commitments, studied [alternative medicine], amongst other things. Whilst there is evidence of these partially completed courses, which has not been challenged, there is no independent evidence of the mother’s current physical capacity or incapacity for appropriate employment.
She has pursued an interest in raw food as a means of treating imbalances within the body. She has received an offer of employment to work at Ms F’s “[business omitted]” in Byron Bay (which will be discussed later).
Each party has extended family in the Sydney area with whom [X] has regular contact. The mother would not concede how frequent that contact is with the father’s family. There is no dispute however that, at present, [X] is seeing her parents and her maternal and paternal grandparents each week.
Each party is in dire financial circumstances. The mother is in receipt of Centrelink benefits and is living rent free in her mother’s unit. Her evidence is that she owes her mother $60,000 for rent (although there is no evidence about how that is calculated) and approximately $30,000 for payment of legal fees. She is not currently contributing anything to the cost of her accommodation.
The father is working, however is heavily committed to paying off debt as set out in paras.103 and 104 of his Affidavit. As a consequence, he has had to move home to reside with his parents. He makes a small contribution to his weekly accommodation.
Therefore, each party is relying heavily on the support of their respective parents.

Mother’s proposal - Byron Bay

The mother proposes that should she be permitted to re-locate to Byron Bay the father spend time with [X] for two days per fortnight with:
a)the mother being responsible for bringing [X] to Sydney each alternate fortnight; and
b)the father to travel to Byron Bay every other fortnight.
The mother, through her Counsel, conceded in closing submissions that there was no certainty about the long-term prospects for the mother in Byron Bay. This concession arises from the facts as set out below.
The mother, in support of her re-location application, argues that she will be able to earn an income while gaining qualifications and experience to teach [omitted]. She says that she is pursuing a lifelong passion to pursue a career than encompasses food and its healing capacities.
There is no dispute that:
a)she has received a job offer; and
b)she has not negotiated the details of the job offer and there is no information available (save that the mother will be paid on what appears to be a job-by-job basis) as to:
i)what the remuneration will be per job;
ii)how many the jobs the mother can expect to work on per week; and
iii)what the average weekly remuneration is likely to be.
This is confirmed by the evidence of Ms F, the proprietor of the business where the mother proposes to work. When asked what had been arranged she was able to confirm that there were two one day workshops scheduled for January and some teacher training was likely. She also confirmed, however, that no rate had been set for payment of the mother and no agreement was in place.
The mother discusses her employment and the business on pages 14, 15, 16 and 17 of her Trial Affidavit. She talks as if it were a partnership and yet the evidence of Ms F suggests she is a contractor being paid on a piecemeal basis. There is no documentary evidence of the arrangement.
Of particular note is para.103 of the Affidavit, where the mother states:
It is a business concept which is in its infancy which I passionately believe will work in the Byron Bay area and its environs.
She then says at para.110 of her Trial Affidavit that:
We propose commencing with one ten day program per month for ten people ….
And goes on to say at para.112:
We have developed a marketing strategy which will include targeting rural websites, yoga schools, ….
This is a venture which, whilst the mother is confident it will succeed, is vague in its detail and has no guarantees of financial security.
If, as the mother said in her evidence, one of the main purposes of the move was to obtain some financial security for herself and her daughter, I can take no comfort from the evidence of the mother or
Ms F that this will occur.
Should that venture fail then it would certainly have a significant impact upon the mother’s ability to stay in the Byron Bay region. This, in turn, may well mean that [X] would have to re-locate once more.

Accommodation - Byron Bay

The mother’s evidence is that she and [X] would be able to stay on the property for the short term. Ms F confirmed that short term could extend to some months. It was not clear whether the mother would be contributing to the cost of her accommodation.
The mother proposed to obtain rental accommodation and supplied on the first day of trial a bundle of pages showing the accommodation available from a website, the price for properties chosen by the mother ranging from $310 to $400 per week.
Her evidence was that her mother would initially pay for this until she was earning enough. The maternal grandmother confirmed this but stated that it was not a “blank cheque”. She was unable to say how long she would be able to subsidise that accommodation.

The mother at present cannot afford to contribute anything to the rent of her mother’s unit. The maternal grandmother’s support is limited. I have difficulty accepting her assertion, on the evidence she provided, that the mother will have income-earning capacity to meet this expense.

School – [H]

The evidence is that the [H] school has a place for [X]. The fees are $950 per term or $3,800 for the kindergarten year, not including books, uniforms or extra curricular activities. The fees increase each year. Both parties have no funds. The mother proposes, and it was confirmed, that the maternal grandmother will pay these expense. The father opposes [X] attending a Steiner School.
Save that Ms F gave evidence that her children attend the school and the mother annexed a pamphlet to her Affidavit, there is no independent evidence about the Steiner system or this particular school.

Time with the father

It is common ground that to drive to Sydney would take approximately ten hours. The mother goes on to say that the trip would cost more than flying. Her preferred option on her proposal is for [X] to fly to Sydney.
The mother produced a bundle of printouts of a variety of flights by Jetstar and tendered these to the Court. This was not canvassed in detail in her Affidavit. I was not directed to any specific point in the bundle save that it confirmed that [X] could fly to Sydney from either Ballinger-Byron Bay or the Gold Coast.
There is no evidence about how long the trip would take [X] from the time she leaves home until she arrives at her father’s residence. From the printouts provided, Jetstar asks people to be at the airport sixty minutes before departure. The flights appear to take around one hour and twenty minutes, assuming there are no delays. If one allowed a total of one and a half hours for getting to and from the airport (noting the Gold Coast is, on the mother’s evidence, forty-five minutes away) then it would not be unreasonable to say that the trip would be at least four hours.
The mother could not say what the cost of the flight would be. She was adamant, however, that [X] would not fly unaccompanied. The cost appeared to range for a one-way fare between $60 and $200 depending on what fare was booked. This cost is also to be borne by the maternal grandmother, pending the mother’s financial situation improving.
This would mean that, in addition to the contributions she currently makes, the maternal grandmother, at least for the initial period of any re-location, would be paying the:
a)airfares for [X]’s flights to Sydney and those of the accompanying person;
b)school fees;
c)rental accommodation; and
d)any additional support that may be required, including books, uniforms and extra curricular activities.
This is a significant commitment and I am concerned that it may not last.
In addition, the evidence is that the father has no funds. There is nothing to which I can refer that shows that he can afford to travel to Byron Bay each month.

Steiner - Sydney

In the event of the mother not going to Byron Bay she seeks to enrol [X] in the [G] or [K] Steiner Schools in Sydney.
There is no evidence that these schools are available or will accept [X].
There is no evidence of the fees that would be charged by the schools. The father suggests it would be $2,700 per term, not including books, uniforms etc. This was not disputed.
The mother says her mother will pay this. The maternal grandmother confirms this but has no idea what it would cost; when pressed she thought it would cost between $5,000 and $6,000 per annum. The evidence, such as it is, suggests that it will be at least $10,800 per annum for kindergarten. It is reasonable to assume these fees will increase as [X] progresses through the system.
It is common ground that neither party has the funds to pay this. In the event that the maternal grandmother ceases payment then the Steiner system is not an option and [X] would need to change schools.
Dr G confirmed she was not aware [X] had attended a Steiner School for 2007 and half of 2008. She was asked to comment on the father’s purported support for the Steiner system previously. Her response was that it was credible that the father would agree to this for the sake of the relationship with the mother. In his discussions with Dr G, she confirmed that he was very clear in his objections.
At the same time there is little evidence about the State Schools proposed by the father, save that a place has been reserved for her at two of the local schools.

Dr G - the report writer

Dr G’s Family Report was admitted into evidence by consent.
She made it very clear that:
a)[X] was starting to have difficulties going with her father already;
b)she considered it appropriate that the child and the parents have some counselling to support the child in her relationship with her father;
c)there was much more potential for the relationship to break down if the child should move to Byron Bay;
d)a move to Byron Bay would also effectively move her away from an extended family network;
e)she understood that the father worked weekends and accepted his explanation that his head was fully engaged with his work commitment and he did not have the capacity to give [X] quality time on those weekends;
f)she was concerned that if the mother came down once a month from Byron Bay it was not clear where the maternal grandparents would fit in. There was no proposal as to how they were to get any time with [X];
g)the cost to the mother also caused concern, it being clear (from the information they supplied) that both parties were in dire financial circumstances;
h)it was also unclear as to whether or not [X] would be brought to Sydney by way of car or flying. Either way, the issue is would it be viable?;
i)it would require considerable expense and effort which, when combined with the reluctance being shown by the child, mean there was increased potential for the child to start refusing to spend time with her father; and
j)the move to Byron Bay with the father in Sydney gave too much room for error and possible damage, when considering the current state of the relationship between the child and her parents.
Dr G was asked whether if the mother participated in the travel arrangements it would demonstrate a commitment to the relationship and assist with the current issues being addressed. Her response was that it would, however problems were being seen with the parties living nearby in Sydney and therefore would most likely be exacerbated if the child was in Byron Bay and had that much greater distance to travel.
She was concerned that in some subconscious way the mother was undermining the relationship between [X] and the father. She had recommended a counsellor to the parties to assist them with this. She thought it could be organised so that they would be eligible for Medicare rebate.
She found [X]’s comments of some concern. They being:
If I even move with my mum a long way my dad would call the police and come and get me.
And
My mummy is having trouble cos my dad is trying to stop me from moving so we can’t get a good school.
She noted that there was an intensity about the relationship between mother and daughter that may not be helpful and may exclude the father. She suggested that the parties should attend counselling for between six and twelve months, to address the relationship issues. She was quite rightly unable to put a more precise timeframe on the exercise.
Her recommendations were that:
a)any parenting orders that are made preserve the child’s relationship with her father on a day to day sense;
b)the times that the child lives with her father coincide with the father’s days off work;
c)the family consults with a counsellor to promote [X]’s relationship with her father; and
d)the counsellor working with the family receives a copy of her report.
She was extensively cross-examined and she did not resile from her report and her recommendations. I find that her evidence was considered and credible.

THE LAW

The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations to which the Court must have regard pursuant to s.60CC.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states 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 as the paramount consideration.
Section 60CC sets out how a court determines what is in the child’s best interests and points to a consideration of the matters set out in sub‑ss.(2) and (3) (per s.60CC(1)).
The primary considerations are contained in s.60CC(2) and are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) sets out additional considerations, which are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)     either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)     the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Island child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j)any family violence involving the child or a member of the child’s family;
k)any family violence order that applies to the child or a member of the child’s family, if:
(i)     the order is a final order; or
(ii)     the making of the order was contested by a person;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)any other fact or circumstance that the court thinks is relevant.
The parties have agreed that there be an order that they have equal shared parental responsibility for the child.
The parties have also agreed in the event of the mother staying in Sydney (subject to a variation sought by the father), what the arrangements should be.
There is no agreement should the mother be permitted to re-locate to Byron Bay; the father opposing the application outright.

Re-location generally

Re-location is not specifically referred to in the legislation, save for a reference to it in the definition of major long-term issues.
Counsel for the mother did make reference to the “freedom of movement” cases, however these were matters that were decided before the significant amendments to the Act in 2006.
As the Full Court said in the matter of Goode & Goode (2006) FLC 93‑286 at para.72:
… it can be fairly said that 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 ….
The principles underlying the objects are now more specific as to children not just having time with their parents, and other significant people, but to spend time and communicate on a regular basis with them. In considering a re-location issue, subsequent to the Act’s amendments the majority of the Full Court in Taylor & Barker (2007) FLC 93-345 stated at para.53 that:
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible ….
That is the path I propose to take.

The children’s best interests

I will turn now to a consideration of the matters set out in s.60CC of the Act in determining the best interests of the child.

SECTION 60CC(2)(a) - the benefit of the child of having a meaningful relationship with both of the child’s parents

The benefit of the child having a meaningful relationship with the both of her parents is not an issue. The issue is how that will work.
The mother’s proposal to re-locate to Byron Bay places a significant barrier of distance between the child and her father.
At present, the child is seeing her father weekly, spending Monday and Tuesday nights with him. This will not be possible should the child be allowed to live in Byron Bay.
In addition, the evidence of Dr G is that the relationship between the child and the father is showing some signs of stress. As she said, this little girl is starting to have difficulty going with her father already. There is much more potential for the relationship to break down if she moves some distance from the father.
I note in particular para.44 of her Report where she says:
[X] is starting to show signs of refusing contact with her father because she prefers to remain with her mother. Her father said that he has recently resorted to (what amounts to) bribing [X] with special outings (e.g. to the Butterfly Farm) so that she will go with him. Living some considerable distance from her father is likely to exacerbate, not ameliorate, this problem. A child who suffers from separation anxiety from a parent is likely to be more anxious when travelling quite some distance from that parent.
She goes on to say at para.48:
Should Ms Kalich be permitted to relocate [X] to the Byron Bay area, the quality of the father’s relationship with her must change. She will lose the day to day contact with her father with bedtime rituals, his helping with school work, involving her in social engagements with friends with young children, and taking her on outings. Notwithstanding the use of communication technologies that can reduce the impact of distance, the nature of their relationship will change and there is a strong possibility that [X] might further distance herself from him. Her mother will have a monopoly on her education and development. The child may not be willing to absent herself from her mother and holiday in Sydney. This circumstance is not in [X]’s interest.
There therefore can be no doubt that a move to Byron Bay, where the father remains in Sydney, would have a significant impact on any meaningful relationship between the child and her father.

SECTION 60CC(2)(b) - need to protect the child from physical or psychological harm being subjected to, or exposed to abuse, neglect or family violence

This was not pressed as an issue by either party. The parties have managed a regime whereby the father has spent time with the child for two nights per week since February/March 2008.
Whilst each parent has expressed concerns about the care of the child, neither has suggested a reduction of the current time (subject to the mother’s application to relocate).

SECTION 60CC(3)(a) - any views expressed by the child

[X] was born [in] 2004. She is nearly six.
She is too young for her views to be taken into account.
This is a matter that rests fairly and squarely on the shoulders of the parents.

SECTION 60CC(3)(b) - the nature of the relationship of the child with:

(a) each of the child’s parents, and

I note Dr G’s report where she states at para.40:
[X] was observed being equally comfortable and relaxed in separate play sessions with each of her parents. She laughed, giggled, sang and made happy little noises with each of her parents.
In para.41 she observes:
She was comfortable to touch both of her parents, but was more physically demonstrative with her mother than with her father. At one point she sat herself on her mother’s lap even though the mother was sitting on the floor.
I have noted previously Dr G’s comments about [X]’s relationship with her father. I accept that, while [X] has a good relationship with her parents, her relationship with her father is starting to show signs of stress.
Dr G notes at para.42 of her Report that:
The mother and the child have a very close bond, which some may characterise as a symbiotic relationship. I certainly do not want to pathologise this strong bond, but I do need to point out that its exclusivity, while enjoyed by [X], has the potential to exclude the father. There are already signs of this occurring. As children need the input of both parents to grow up psychologically healthy, this is of concern.
I also accept that a move to Byron Bay would place that relationship under further stress.

(b) other persons (including any grandparent or other relative of the child)

[X] spends two nights per week with her father who resides at his parents’ home. The paternal grandmother, Ms O, swore an Affidavit which was accepted by the mother through her Counsel and she was not required for cross-examination.
Her evidence was, amongst other things, that [X]:
a)has her own bedroom at their residence;
b)engages in playing board games, doing craft, playing with her dolls, and participates in outings to the beach and picnics with the father and her grandparents; and
c)eats at restaurants with the extended family.

She says at para.9 of her Affidavit that the father has a large and close collection of relatives and friends with children of similar age to [X] and consequently she has the opportunity to mix with children her own age, which helps provide her with a balanced childhood.
She goes on to state that family gatherings occupy a special place in their lives and the father’s two sisters and their families look forward to spending time with him and [X], particularly when they holiday together at [S].
In addition, there is the Affidavit sworn by Ms C, the father’s cousin. Ms C is a pre-school teacher and her evidence was not challenged by the mother - in that she was not cross-examined.
Her evidence is that her eldest son, [Y], and [X] are only eight months apart in age.
Over the past two and a half years Ms C’s family has seen and spent time with [X] on a regular basis, partaking in activities such as play days at Ms C’s house, bike rides and special events, such as visiting the circus and restaurants. In the warmer months the father and [X] come to their residence weekly for playtime and a swim in the pool.
Both she and the paternal grandmother refer to the annual family picnic at [omitted] Beach which comprises fourteen cousins, thirteen aunts and uncles and six great aunts and uncles.
The mother was asked about [X]’s relationship with her extended family on her father’s side. Her response was not helpful, stating that: “I am not there to see how she interacts”. When it was put to her that she had taken [X] to see Ms C’s boys, her response was that she interacted like she does with other friends.
I accept the evidence of Ms C and Ms O that [X] does have a good relationship with her father’s extended family.
I also accept the evidence of the maternal grandmother that [X] has a close relationship with her and her partner Mr G.

SECTION 60CC(3)(c) - the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing a close relationship between the child and the parent

The mother

The mother’s evidence was that she was not trying to stop [X] spending time with her father. That, however, does not say that she is willing and able to positively promote the relationship between [X] and her father.
I note para.50 of the Report of Dr G, with which I agree, where she says:
I assess that the mother is not actively or consciously discouraging the child’s relationship with her father, but she is certainly not encouraging it either. She is in effect subtly undermining the relationship between father and daughter by not validating the father’s feelings about the child’s importance to him, and the importance of that relationship generally. She articulated her attitude about this when she declared that she cannot be responsible for the father’s relationship with the child; that he has to take responsibility for that. In this work many parents have reported to me that they will say to a child who is reluctant to go on contact, ‘Daddy loves you and you need to spend time with him’, which in effect gives the child permission to enjoy a relationship with the non-custodial parent, and frees them from loyalty conflicts. I doubt that Ms Kalich would go this far. She is rather promoting the primacy of the mother and daughter relationship and its exclusivity. Ms Kalich needs to separate the child’s relationship with her father from the mother’s relationship with her ex-partner. She needs to understand that [X] needs a relationship with both parents to grow up psychologically healthy. Promoting [X]’s relationship with her father is just as important for her wellbeing as giving her a good education.
In moving to Byron Bay [X] would go from seeing her father on a weekly basis to, on the mother’s proposal, a fortnightly basis.
In addition, even if [X] were to fly to Sydney to see her father, she would have to spend a significant period of time in transit between Byron Bay and Sydney.
Furthermore, there are grave concerns about whether the mother will have the financial ability to facilitate and encourage a close and continuing relationship between [X] and her father.
Moving her to be near a school in Sydney and further away from the father may also place further stress on the relationship.
In the circumstances I have concerns about the mother’s willingness to facilitate and encourage a relationship with her father and I consider the further away [X] lives from her father the less likely the mother will be able to facilitate that relationship with other matters taking priority.

The father

The father in his proposals acknowledges the mother’s role in being the primary care-giver for [X].
The evidence of Ms C and the evidence of his mother are unchallenged. They corroborate his evidence that he supports the child’s relationship with the mother.
Whilst he is not prepared to move to Byron Bay, I accept he has no funds to facilitate the move and that there are grave concerns that the mother’s proposal will not work. In the circumstances, I cannot be critical of his decision to remain in Sydney.
In the circumstances, I have no concerns about his willingness to facilitate and promote a relationship between [X] and her mother.

SECTION 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(a) either of his or her parents; or

I accept the evidence of Dr G that there is a strong potential for a move to Byron Bay to affect the ability of [X] to have a meaningful relationship with her father.
The father has had significant involvement with [X], with a routine established since at least February/March 2008. He presents as someone who is child-focused and who is keen to play an active role in his daughter’s life.
I accept the evidence of the father and his witnesses and that of Dr G that it will be extremely difficult, if not impossible, for the relationship between the father and his daughter to prosper should she be permitted to move to Byron Bay.
Should she move within Sydney, then I am concerned that similar stress may be placed on the relationship, however, without additional information, which is unavailable, it is not possible to comment further.
In addition, I have grave concerns that the move to Byron Bay, will not work and [X] will need to move again.
As the father is not seeking to have [X] live with him, I do not propose to comment in respect of the mother.

(b) any other child, or other person

I have already commented on the evidence of [X]’s interaction with the paternal extended family. The effect of any proposed move to Byron Bay will mean that her time with her father in Sydney will be limited. This will have an impact on her ability to spend time with her maternal grandmother (Ms K) and the grandmother’s partner Mr G (who has a close relationship with [X]),and will require her to establish a new circle of friends in Byron Bay. Ms K says she will visit Byron Bay once a month. This is not the same as the frequent (two to three times per week) interaction she currently has.
The evidence of the mother is that [X] attends a number of classes in Sydney, including ballet, swimming and other activities. This will all change in the event that she has to move.

SECTION 60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

I have addressed this in some detail at the commencement of these Reasons.
I do not accept that the mother has in any way addressed the practical difficulty and expense of [X] spending time with and communicating with her father should she be allowed to move to Byron Bay.
The cost will be significant and the mother’s evidence is clear. She has no funds and will be solely reliant on her mother.
Her mother’s evidence is clear, it is not a blank cheque.
The mother is not aware of how long it will take for [X] when she departs from her home in Byron Bay and travels to Sydney to reach her father’s residence.
It is clear that the time will be significant even if there are no delays with the aircraft.
The time taken to drive to Sydney is unacceptable for a child of this age, particularly during the school term.
It is therefore open to me and I do find that the difficulty and expense of spending time with her father will substantially affect her right to maintain personal relationships and direct contact with both parents on a regular basis.
It is appropriate that [X] stay in Sydney. There is a history of moves by the mother to re-locate and it is appropriate to continue the injunction preventing the mother from changing [X]’s principal place of residence to a place outside of the Sydney greater metropolitan area.

SECTION 60CC(3)(f) - the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

Both parents have the capacity to provide for the needs of the child, including her emotional and intellectual needs. This matter did not occupy the time of the Court when considering the outcome of these proceedings.

SECTION 60CC(3)(g) - the maturity, sex, lifestyle and background of the child

As to this issue, it is appropriate to quote from para.30 of the report of Dr G. That is:
[X] presented as a very tall child for her 5 years 7 months of age. She did not yet attend school, nor does she attend pre-school. Being a tall child she looks older than her years and presented socially as pseudo mature. Sometimes the way in which she related to her mother was observed to be that of a much older girl relating to another female. Her mother described her as an old soul who sometimes says things beyond her years. However, in other ways [X] was quite young. For instance, she could not tell me her birthday and could not recognise written numbers.
This finding was not challenged by either party.

SECTION 60CC(3)(h) – if the child is an aboriginal child

This section is not relevant.

SECTION 60CC(3)(i) - the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents

Both parents are keen to ensure that [X] receives the best possible start in life. The difficulty is they cannot agree on what that should be.
The father’s proposals involve [X] staying where she is and attending a local school. Thought appears to have been given to ensuring her stability and continuing her relationship with her extended family.
The father is not prepared to move to Byron Bay to support the mother in this venture. In view of the fact that he has no funds to facilitate the move and there are grave concerns that the move will simply not work, I do not believe that he should be forced to do so.
Whilst the mother has put forward proposals that centre around the Steiner system, the proposals, however, lack particulars and give rise to concerns that they will simply not work. This would mean disrupting [X] to move to the new location, with the possibility of further disruption should the proposal fail. Parents have a responsibility to provide their children with a stable environment. I am not convinced that the mother in this case has exercised that responsibility.
The parents also have a responsibility to facilitate and encourage the child’s relationship with the other parent. Comment has been made by the report writer that the mother in some way is subtly undermining the relationship between the father and [X]. This is also reflected in her inability to set out clearly how either of her proposed moves would work. In each case, there is a barrier of distance being placed between the father and his daughter. In the case of Byron Bay there is little comprehension of the effort it would take for [X] to travel to Sydney each month (not including school holidays). In the case of a move within Sydney, there is no evidence at all. Making sure it will work and not impact on the child’s relationship with her father does not appear to have been a priority for the mother. Dr G says “[p]romoting [X]’s relationship with her father is just as important as giving her a good education”. In view of the lack of evidence about the merits of either system of education, that relationship is of more importance as, to quote Dr G: “[s]he needs a relationship with both parents to grow up psychologically healthy”.
In the circumstances I accept that if the mother moves away the risk that the mother may not meet these responsibilities is significant.

SECTION 60CC(3)(j) – any family violence involving the child or a member of the child’s family

This was not a live issue between the parties at the hearing of this matter.
In the circumstances I do not consider it necessary, nor have I been asked by either party, to address this issue in detail.

SECTION 60CC(3)(k) - any family violence order that applies to the child or a member of that child’s family

This section does not apply.

SECTION 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

As can be seen from the reasons set out above I am not convinced that any move to Byron Bay will work. There is no evidence to support the mother’s claim that this will place her in a more financially secure position.
The only way it can possibly work is by significant subsidies being provided by the maternal grandmother.
There is a limit to how much she can be expected to underwrite this venture and, in the circumstances, there is a grave concern that the venture will fail. This will mean either that [X] will need to re-locate to another town or possibly back to Sydney and/or her time with her father will be curtailed because the mother will be unable to address the practical difficulty and expense of [X] spending time with her father.
In the circumstances it would seem that the order that would be least likely to lead to the institution of further proceedings would be one that would prevent the re-location to Byron Bay.

SECTION 60CC(4) – extent to which each party has fulfilled or failed to fulfil responsibilities as a parent

This has been addressed to some extent previously in these reasons.

SECTION 61DA – presumption of equal shared parental responsibility when making orders

The parties have agreed to an order for equal shared parental responsibility.

SECTION 65DAA – court to consider equal time/substantial and significant time

If a parenting order provides that the parents are to have equal shared parental responsibility for the child the Court must consider the option of the child spending equal time with each party. This is not sought by the parties and, for the reasons set out above, not appropriate.
If an order is not made for equal time then I must consider whether [X] spending substantial and significant time is in her best interests and is reasonably practical.
The father seeks orders that his time commence each week on Sunday at 4pm and conclude on Wednesday mornings. The mother asks that this time commence on Monday at 8am. The Report Writer says:
I do not see any problem with this before the child begins school in 2010, as she does not have commitments on Monday this year. However, after this little girl starts school in 2010, for her to begin contact with her father at 5:00 pm Sunday and then go to sleep an hour or so later is not viable as she would be excited to see him (or at least highly energised at the change) and might not be able to get to sleep in time for school the next morning. The mother is also likely to be extremely upset with not being available to oversee the start of the school week and would transfer her anxiety to the child who may then start to refuse contact. For these reasons I suggest the hours remain as they are, Monday 8am to Wednesday 8am.
I accept the recommendation of Dr G at this stage. This will be [X]’s first year and it will be important for her. There is, however, nothing to suggest that this should not progress once [X] has settled into a routine and it is for that reason I would order that commencing 2011 [X]’s time with her father start at 4pm Sunday on each alternate weekend, concluding at 8am Wednesday. The intervening week will remain the same, namely Monday to Wednesday.
In addition, there is no reason that I can deduce from the evidence to prevent [X] from spending time with her father:
a)from 9am to 6pm each alternate Good Friday commencing 2010; and
b)from 9am to 6pm on the third Sunday in November and on the third Sunday in February of each year,
which will enable her to participate in the family picnics, amongst other things.
The parties have agreed the basic format for the father’s time with [X] and there is no reason to suggest that it will not be reasonably practical in the circumstances.
They have left the time-frame of Christmas open to the Court and I have adjusted it so that one parent will have the benefit of Christmas morning, with the other to have Christmas lunch.
For the reasons set out above, being, amongst other things, the child’s relationship with her father and the benefit of the ongoing relationship with her father’s extended family, these orders are appropriate.

Conclusion

There is nothing, save for the evidence before me of the mother’s decision to undertake employment in Byron Bay in chosen her field, that would support a move to that locality.
The evidence of the report writer is that it would have the effect of significantly increasing the chance of there being a breakdown in the relationship between [X] and her father.
The evidence of the mother leads me to conclude that she has not applied her mind as to how the venture will be able to work financially, save and except she can rely on her mother for financial support.
The evidence of the maternal grandmother is that she would be prepared to assist and support her daughter in whatever way she can, however, her support, save and except for education, is not unlimited.
In the circumstances, for the reasons set out in this judgment, I cannot make an order that will permit the mother to relocate to Byron Bay.
The mother then seeks an order that she be permitted to enrol [X] in a Steiner School in Sydney. Again, it is clear that:
a)there is nothing that says [X] has a place at either of these schools; and
b)the mother at present cannot afford to contribute to the cost of her current accommodation, which is owned by the maternal grandmother.
There is no evidence as to:
a)what the accommodation near either of the schools will cost;
b)how she will afford to pay rent when she cannot pay at present, save and except for the subsidy promised by the maternal grandmother; and
c)the cost of moving to reside in a location near either school compared to the cost of transporting [X] on a daily basis.
The mother suggests that she needs to vacate her mother’s unit as the mother needs to sell the property.
Her mother’s evidence in Court was in direct contrast to her Affidavit and to the evidence of the mother. She clearly stated “I don’t need the income from the house” and later went on to say “I don’t need the money”.
[X] apparently resides some ten to fifteen minutes drive from her maternal grandmother.
She also currently resides close to her paternal grandparents and to her father.
Whilst the maternal grandmother, later in her evidence, said she would like to sell the townhouse to pay for [X]’s education, this evidence directly contradicted her earlier adamant declaration that she did not need the money. I therefore have difficulty accepting her evidence on this point, namely that the townhouse will have to be sold to assist to meet her pressing financial commitments.
I also have difficulty with the logic of the mother not paying rent for her current accommodation, her mother selling the unit and her mother then subsidising the rent of the alternative accommodation.

In the circumstances, I do not see the need to sanction a move from a residence where the mother is currently paying no rent to one where she will be required to pay a significant amount of rent (although there is no evidence of what exactly this would be), when she has clearly demonstrated no financial capacity to meet that expense. I therefore refuse the application to re-locate to a residence near a Steiner School.
At the same time, in view of the lack of evidence regarding alternative options in Sydney, it is not possible to do other than continue the injunction preventing the mother from changing [X]’s place of residence to a location outside the Sydney greater metropolitan area.

Steiner education verses mainstream education

Neither party presented any evidence to back the merit of one educational system over the other. At the end, this amounted to a case of the preference of one parent over the other for one particular system of education and the practicality of the arrangements.
As Dr G commented at para.46 of her report:
One such factor is the practicality of the child attending a school which the father claims costs $2,500 per term [noting it was put in the trial that it was $2,700 per term]. From all accounts neither parent has the capacity to pay these fees … the mother says that her mother will pay, but at the same time she reported that her mother has to sell the townhouse in which they are living because the proceeds will be her only source of income next year. Her mother is also paying her legal fees.
She goes on to say at para.47:
Another factor is the distance the child presently lives from the school. Currently the child lives approximately 40 kilometres from the school which is a substantial commute across Sydney for a child in peak hour traffic. Travelling 480 kilometres per week would be costly for the mother in terms of fuel costs. The mother plans to move closer to the school but said she will be restricted to living in cheaper areas, like Manley. Her plans about moving impressed as quite vague at the time of interview.
The plans to move closer to the school did not become any more particular when it was canvassed by the mother in her Trial Affidavit, which is confined essentially to para.135 where she states:
If I must stay in the Sydney metropolitan area I will not remain in the [S] Shire and propose moving to rental accommodation close to whichever Steiner School [X] is able to attend whether that is [G] or [K].
The mother is unable to provide any further particulars. She is seeking to enrol [X] at a Steiner School and then foreshadows that she will move to live near it. There is no evidence as to which one it will be, where they will live or whether the move is feasible or practical.
With little or no information it is not possible to make any findings and in the circumstances I cannot grant the application.
The father in return seeks an order that he be allowed to enrol [X] in the local state schools.
He provides by way of evidence copies of the documents received from the [W] and the [B] Schools but does not refer me to anything specific in either bundle.
He says at para.101 of his Affidavit that “both schools look clean and tidy and both members of staff I spoke to seemed friendly”. His evidence as to what is the best education system for his daughter is as unhelpful as the mother’s.
As the information supplied by each party is inadequate, any decision would have to be governed by an examination of what will work best for [X].
If the maternal grandmother does proceed with the sale of the unit (even though she may not have to) then there will be different matters to consider.
The Full Court made it clear in Re G (2000) FLC 93-025 that there is no legal presumption that favours acceding to the proposal (in regards to schooling) of the parent with whom the children are living.
Neither party has convinced me that I should order that [X] attend one school in favour of the other. There are significant practical issues in respect of the Steiner Schools in Sydney. At the same time that does not mean the child should be ordered to attend a state school as a default.
Section 60B(2)(d) of the Act states that “parents should agree about the future parenting arrangements”. In view of the lack of information about the schools and how it will work for [X], this is exactly what they will have to do.
I would therefore dismiss the father’s application and urge the parents to negotiate a practical solution to this issue, now that the issue of the move to Byron Bay has been resolved.
For the above reasons, I make the orders set out at the commencement of these Reasons.

I certify that the preceding one hundred and ninety-three (193) paragraphs are a true copy of the reasons for judgment of Cole FM

Associate: Ms M. Christopoulos

Date: 23 December 2009