OSMOND & BRAND

[2019] FCCA 1696

FEDERAL CIRCUIT COURT OF AUSTRALIA

OSMOND & BRAND [2019] FCCA 1696

Catchwords:
FAMILY LAW – Parenting – where there is one child of the relationship – where the child has stepsiblings younger and older in age in both parents homes – where the father has sole parental responsibility – where the father is a serving member of the Australian Defence Force – whether the father should be permitted to relocate with the child at any time that he is posted with the Australian defence Force – whether the costs of travel for the child if the father is required to relocate with the Australian Defence Force should be shared where there are outstanding child support and costs order debts.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(3), 65DAA

Cases cited:

Godfrey & Sanders [2007] FamCA 102

Sayer & Radcliffe [2012] FamCAFC 209
Taylor & Barker (2007) FLC 93-345
Morgan & Miles (2007) FLC 93-343
Mulvany & Lane (2009) FLC 93-404
McCall & Clarke [2009] FamCAFC 92
Wendland & Wendland [2017] FamCAFC 244

Applicant: MR OSMOND

Respondent: MS BRAND

File Number: TVC 1294 of 2012

Judgment of: Judge Middleton

Hearing dates: 17 & 18 June 2019

Date of Last Submission: 18 June 2019

Delivered at: Brisbane

Delivered on: 20 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: Dillon Bowers Lawyers

The Respondent appearing on her own behalf

ORDERS

1. That the father have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, [X] born … 2010 (“[X]”) subject to the communication and notification of such decisions to the mother, including but not limited to;

   (a)The child’s education (both current and future); 

   (b)The child’s religious and cultural upbringing; 

   (c)The child’s health; 

   (d)The child’s name; 

   (e)Changes to the child’s living arrangements that make it significantly more difficult to spend time with the other parent.

2. Notwithstanding order 1 hereof;

   (a)The father shall be responsible for the daily care, welfare and development of [X] whilst he is living with or spending time with him; and the mother be responsible for the daily care, welfare and development of [X] whilst he is living with or spending time with her.

3. That the child live with the father.

4. That the day to day communication that would otherwise be between the father and mother regarding changeovers and the like be between Ms A and the mother for any period of time that the father is deployed for his employment.

5. That the child remain living with Ms A for any period of time that the father is deployed for his employment.

6. That the child be permitted to relocate to where ever the father is posted by the Australian Defence Force within Australia.

7. [X] shall spend time with the mother at all times as agreed in writing between the parties or if no agreement can be reached as follows; 

   (a)each alternate weekend from after-school Thursday to before school on Monday, or Tuesday if the Monday is a public holiday or pupil free day until the commencement of term 4 2019. 

   (i)the time referred to in order (7)(a) will continue subject to any relocation provided that the mother:  

   1    supplies the father with evidence of ownership, including the description of the property or evidence of a current rental agreement together with the correspondence from the relevant rental agent describing the configuration, the number of occupants and currency of the rental agreement. 

   2    the mother provides the following information contained within order 1 above upon any change of ownership or the expiry or renewal or termination of any rental tenancy agreement in relation mother's residential address. 

   (b)In the event the mother fails to provide the evidence in accordance with order (a)(i)1 and 2 the child's time with the mother shall be each alternate weekend from after school Friday until before school on Monday, or Tuesday if the Monday is a public holiday or pupil free day. 

8. That the mother will ensure that the child sleeps in his own bed. 

9. That the parties will ensure that [X] is spending time with his father from at least 26 December 2019 until at least one day after the birth of the father’s child to Ms A. 

10. Handovers are to occur to and from the child’s school on school days. The non-collecting parent is not to attend school at handover time. On non-school days, handovers are to occur at a location nominated by the father.

11. That the mother shall spend time with the child during school holidays as agreed in writing between the parties or if agreement cannot be reached as follows; 

    (a)During term 1 school holidays, the child will spend the first half of the holidays with the mother in even numbered years and the second half in odd numbered years;

    (b)During term 2 school holidays the child will spend the first half of the holidays with the mother in even numbered ears and the second half in odd numbered years

    (c)During term 3 school holidays the child will spend the first half of the holidays with the mother in even numbered years and the second half in odd numbered years

    (d)During term 4 school holidays (Christmas school holidays) the child will spend the first half of the holidays with the mother in even numbered years and the second half in odd numbered years.

12. Time for the purpose of Christmas school holidays will commence at 3:00pm on the last day of school and will conclude on Friday prior to the first day of school with the half way point calculated between those dates.

13. That Christmas Day is alternated from year to year depending upon where the child is spending the first half of the Christmas School holiday period provided that;

    (a)in the event that the parent who otherwise has the children in their care for the first half of the holiday periods pursuant to the terms of these orders (which includes Christmas Eve, Christmas Day and Boxing Day (the Christmas Days)) is in the same location as the other parent, the parent with whom the child is living with on Christmas Day will retain the child until 2 PM on Christmas Day and thereafter the child will spend time with the other parent from 2:00pm onwards until 2:00pm on Boxing Day, after which time the child will be returned to the other parent to continue on with their holiday. 

14. That the parent who has the child in their care for the first half of the holiday periods pursuant to the terms of these orders (which includes Christmas Eve, Christmas Day and Boxing Day (the Christmas days)) then the other parent is to have the opportunity for telephone and or electronic communication on those days.

15. [X] will spend time with each of the parties on special days as follows;

    Mother’s Day and Father’s Day

    (a)In the event that Mother’s Day falls on a day when [X] is living with the father pursuant to these Order, then the mother shall spend time with [X] from 9:00am to 5:00pm Mother’s Day.

    (b)In the event that Father’s day falls on a day when [X] is living with the mother pursuant to these Orders, then the father shall spend time with [X] from 9:00am to 5:00pm Father’s Day. Alternatively, the parties are able to swap weekends by agreement so that [X] is with the mother on Mother’s Day and the father on Father’s Day.

    Birthdays

    (c)In the event that [X]’s birthday falls on a day when [X] is otherwise spending time with the father pursuant to these Orders, then the mother shall spend time with [X] at times as to be agreed between the parties and failing agreement from 3:00pm to 7:00pm on a school day or between 2:00pm and 7:00pm on a non-school day.

    (d)In the event that [X]’s birthday falls on a day when [X] is otherwise spending time with the mother pursuant to these Orders, then the father shall spend time with [X] at times to be agreed between the parties and failing agreement from 3:00pm to 7:00pm on a school day or between 2:00pm and 7:00pm on a non-school day.

    (e)In the event that the mother’s birthday falls on a day when [X] is living with the father pursuant to these orders, then the mother shall spend time with [X] at times to be agreed for a period of no less than four (4) hours and failing agreement between 3:00pm and 7:00pm.

    (f)In the event that the father’s birthday falls on a day when [X] is living with the mother pursuant to these Orders, then the father shall spend time with [X] at times to be agreed for a period of no less than four (4) hours and failing agreement between 3:00pm and 7:00pm.

16. Each parent will facilitate [X] having reasonable telephone/skype/FaceTime communication with the other parent and in the event of disagreement, each Monday, Wednesday and Saturday between 7:00pm and 8:00pm. 

17. The parties shall communicate general parenting information by email and more urgent messages via text message or telephone call. 

18. Each parent shall keep the other informed of their residential address, telephone contact number/s and email address and shall advise the other of any change within twenty-four (24) hours of any change occurring. 

19. In the event of any parenting dispute the parties are to attend Family Dispute Resolution in an endeavour to resolve the dispute NOTING however that the father has sole parental responsibility in relation to long term issues and such issues are not issues for debate with the mother.

20. Each parent will contact the other parent by telephone forthwith in the event the child requires hospitalisation or is involved in a serious medical incident. 

21. The parties are entitled to travel interstate with [X] during their time set out in these orders. In the event that they are travelling interstate, the travelling parent is to provide the other parent with at least 72 hours’ notice, save and except for genuinely urgent travel, at which time the travelling parent will advise the other parent at the earliest opportunity of the destination within Australia to which the intended to travel with [X].

In the alternative – should relocation occur

1. That the child [X] born … 2010 (‘[X]’) live with the father outside of Brisbane.

2. [X] will spend time with the mother at all times as agreed in writing between the parties but specifically during each school term as follows;

   (a)For up to nine (9) consecutive days commencing after school Friday in week 2 of the school term until 5:00pm on the Sunday nine (9) days later.

   (b)For up to nine (9) consecutive days commencing after school Friday in week 6 of the school term until 5:00pm on the Sunday nine (9) days later.

   (c)If the mother proposes to spend time with [X] in accordance with orders 23(a) and 23(b) above the mother is to provide the father with fourteen (14) days written notice of her intention to spend time with the child and to ensure that the child continues his regular attendance at school and involvement in all current extra-curricular activities.

3. That the mother shall spend time with the child during school holidays as agreed in writing between the parties or if agreement cannot be reached as follows;

   (a)For the 10 days during the end of term 1 and end of term 3 holiday periods each year being the first 10 days in even numbered years and the last 10 days in odd numbered years;

   (b)The entirety of the end of term 2 school holidays; 

   (c)During term 4 school holidays (Christmas school holidays) the child will spend the first half of the holidays with the mother in even numbered years and the second half in odd numbered years; 

   (i)in the event that the parent who otherwise has the child in their care for the first half of the holiday periods pursuant to the terms of these orders (which includes Christmas Eve, Christmas day, Boxing day (the Christmas days)) is in the same location as the other parent, the parent with whom the child is living with on Christmas Day will retain the child until 2:00pm on Christmas Day and thereafter the child will spend time with the other parent from 2:00pm onwards until 2:00pm on Boxing Day, after which time the child be returned  the other parent to continue on with the holiday period. 

4. That for the purpose of Christmas school holidays will commence at 3:00pm on the last day of school and will conclude on Friday prior to the first day of school with the halfway point to be calculated between those dates.

5. During the school holiday’s handovers are to occur from either the Brisbane airport or the airport closest to the father’s residence. During the school term handovers are to occur to and from the child’s school on school days. The non-collecting parent is not to attend school handover time. During the school term on non-school days handovers are to occur at a location nominated by the father, from time to time.

6. That the costs of the child’s travel to spend time with the mother be as follows; 

   (a)The mother is to pay the travel expenses associated with the time that the child spends on two occasions during each school term. 

   (b)In the event that the mother has no outstanding debts, relating to child support or costs orders previously made, the father is to meet the costs of travel for holiday time;  

   (c)In the event that a debt remains outstanding in relation to child support and previously ordered costs the mother shall be responsible for booking and paying for [X]’s travel costs from the father's address to her address at the commencement of her time with [X] and the father shall be responsible for booking and paying for the cost of [X]’s travel from the mothers address to the father's address at the conclusion of [X]’s time with the mother during school holiday periods. 

7. [X] will spend time with each of the parties on special days as follows; 

   (a)The father will facilitate [X] telephoning the mother on Mother’s Day at 9:00am if the mother is not otherwise spending time with [X] pursuant to these Orders.

   (b)The mother will facilitate [X] telephoning the father on Father’s day at 9:00am if the father is not otherwise spending time with [X] pursuant to these Orders.

   (c)The mother shall be entitled to telephone communication with [X] on her birthday at 9:00am if she is not otherwise spending time with [X] pursuant to these Orders.

   (d)The father shall be entitled to telephone communication with [X] on his birthday at 9:00am if he is not otherwise spending time with [X] pursuant to these Orders.

   (e)The father shall be entitled to telephone communication with [X] on [X]’s birthday at 9:00am if he is not otherwise spending time with [X] pursuant to these Orders.

   (f)The mother shall be entitled to telephone communication with [X] on [X]'s birthday at 9:00am if she is not otherwise spending time with [X] pursuant to these orders.

8. During each school term, each of the parents will facilitate [X] having reasonable telephone/Skype/FaceTime communication with the other parent. The parent who does not have [X] in their care will be entitled to telephone communication with [X] on Monday, Wednesday and Saturday between 7:00pm and 8:00pm.

IT IS NOTED:

(A)The court notes that the mother will ensure that [X] is spending time with his father for the birth of the father’s child to Ms A in December 2019.

(B)That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these orders titled “Parenting orders – obligations, consequences and who can help”.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

TVC 1294 of 2012

MR OSMOND

Applicant

And

MS BRAND

Respondent

REASONS FOR JUDGMENT

Background

1. This is a parenting application involving [X] born … 2010. 

2. [X] has lived with his father since January 2015 after proceedings were commenced in Cairns and Judge Willis ordered that [X] live with his father, that the father have sole parental responsibility and that [X] spend time with his mother. 

3. [X]'s father is a current serving member of the Australian Army.  His father lives with his current wife, Ms A and their one child [B] born … 2017.  Mr Osmond and his current wife are expecting their second child in … 2019. 

4. [X]'s mother was employed as a professional of Employer.  She has moved to Brisbane as of October 2018.  Ms Brand is currently employed having been so employed for approximately two months. 

5. On 2 November 2016 Judge Coker made orders on an interim basis that the father be permitted to relocate to Brisbane with [X]. 

6. This matter is before me for final determination in respect to parenting orders for [X]. 

7. From November 2016 for approximately one year and ten months the mother continued to reside in Town C.  She spent time with [X] in accordance with His Honours orders of 2 November 2016. 

8. When the mother moved to Brisbane she began spending time with [X] from Thursday after school until Monday before school and in the event Monday was a public holiday or pupil free day until Tuesday before school together with school holiday time. 

The Issues

1. The issues for me to determine are:  

   a)whether the child's time with the mother should be reduced by one night until such time as the mother is able to provide evidence that [X] will have his own bed and bedroom whilst in his mother's care;  

   b)whether the father is permitted to relocate with the child at any time that he is posted with the Australian Defence Force;  

   c)who should meet the costs involved in the child spending time with his mother in the event the father is required to relocate with the child as a result of the posting with the Australian Defence Force. 

The Material

1. The father relied upon the material as set out in his case outline filed on 10 June 2019. 

2. The mother relied upon the following material;  

   a)affidavit of the mother filed 22 June 2018 and 14 February 2017;  

   b)transcript of proceedings before Judge Coker on 14 February 2017;  

   c)a detailed chronology filed with leave; 

   d)chronology of [X]'s time with the mother filed by leave; 

   e)minute of orders sought by the mother.[1] 

   [1] Exhibit 3

Orders Sought

1. The father sought orders in accordance with Exhibit 1 in the proceedings and an order subsequently tendered at the time of submissions in the following terms:  

   a)that the mother supply the father with evidence of ownership, including the description of the property or evidence of a current rental agreement together with correspondence from the relevant rental agent describing the configuration, the number of occupants and currency of the rental agreement. 

   b)That the mother provide the father with information contained in the order above, upon any change of ownership or the expiry or renewal or termination of any rental tenancy agreement in relation to the mothers residential address. 

2. The mother sought orders as set out in the minute of orders contained within exhibit 3. 

3. The issues I have identified are distilled and identified as a result of the orders being sought by both parties. 

The Law

1. Guided by the objects and principles as outlined in section 60B and having the child's best interests as my paramount concern pursuant to section 60CA, I must make orders that are in the best interests of the child. 

2. In determining what orders are in the best interests of the child I must consider the matters set out in section 60CC(2) and (3). 

3. In relation to parental responsibility both parents were seeking a continuation of the order that the father have sole parental responsibility, however the order for sole parental responsibility differed in that the father sought an order that his parental responsibility should include “changes to the child's living arrangements that make it significantly more difficult to spend time with the other parent.” 

1. The mother's order for sole parental responsibility did not include that aspect of parental responsibility. 

The Evidence

1. It is not in contest that the child is currently spending time with his mother from Thursday after school until commencement of school Monday and in the event Monday is a pupil free day or holiday until commencement school Tuesday together with half of all school holiday periods. 

2. It is also not in contest that the child spent block periods of time consisting of nine consecutive days for two occasions each school term, together with holiday time until such time as the mother moved to Brisbane. 

3. The evidence establishes that the time as ordered by Judge Coker in his orders of 2 November 2016 has occurred at all times consistent with the orders. 

4. It is also not in contest that on at least two occasions there was an issue in relation to the child spending time with his mother on two separate occasions.  Those occasions relate to the birth of [B] and subsequently the first birthday of [B]. 

5. It is also not an issue that the child has a meaningful relationship with his mother. 

6. Both parties referred to Judge Willis’ decision in 2015.  It is clear from Her Honours findings that the parties have had extreme difficulty in communications relating to long-term issues for this child. 

7. The evidence before me establishes that communications relating to everyday aspects for this child are in the main quite effective but also that communications regarding long-term issues have remained to be very difficult for these parties such that they rely upon court orders because they simply cannot agree. 

8. It should be noted that proceedings have been on foot effectively since 2012 when this young child was 2 years of age.  Accordingly he has been subject to proceedings for seven years out of his life noting that he will turn 9 years of age in … 2019. 

9. The mother's evidence can be summarised in the following fashion.  The mother argues that it is fundamentally important for this child to have a continuing relationship with herself and his step sister Ms D.  Ms D is either 20 or 21, it is uncertain as to her age, however in the mother's affidavit sworn 22 June 2018 the mother gave evidence that Ms D was at that time 20 years old. 

10. The mother said that she did not contemplate that the father may be required to relocate as a result of his position with the Australian Army.  I find that surprising, particularly so when she gave evidence that she has lived in Town C for many years and knows of many people who had been posted away from Town C whilst serving in the Defence Force.

11. When cross-examined as to the likelihood that he would be required to be posted with the Australian Army to a different location the mother then proposed that in the event the father is required to be posted outside of Brisbane then her position was that the father should move and that the child [X], his siblings and the father's wife, Ms A remain in Brisbane so that the child can continue his relationship with the mother, Ms D, and have stability in relation to his peers and schooling. 

12. The father's evidence was, in relation to a posting, that his primary preference is to remain in Brisbane.  In the event that his primary preference was not approved then his secondary position was that he be posted to Tasmania and thereafter a third option was that he be posted to Town E due to service needs. 

13. It was suggested that there might be other units he could be posted to in Brisbane and the father gave evidence that he could not be posted as a Sergeant to other units. 

14. Furthermore the father gave evidence that his preference would be that he would seek a three-year posting in Brisbane as that would be in [X]'s best interests however he has an entire family to consider and his family would come first. 

15. The father agreed that his wife's family were all in Brisbane and the evidence established that the paternal family were living in Tasmania. 

16. The evidence of the father was that a relocation would not impact upon [X] however he acknowledged that [X] may miss his mother and his sister initially, however he has proven his resilience after being removed from his mother’s primary care in 2015 and then spent limited time with his mother for one year and ten months when he first moved to Brisbane with his father in 2016. 

17. The father indicated in his evidence that he did not recall that [X] was upset at the times that he transitioned between the father's care and the mother’s care. 

18. Exhibit 2 in the proceedings is evidence that [X] has some behavioural issues in school and that he is receiving some additional support by a male at the school.  Otherwise it is reported that [X] is a high achieving student. 

19. The father indicated that he had a concern with the child sleeping in the same bed as the mother and not having stability in terms of the mother's household. 

20. The father acknowledged that the child is well attached to the mother and that he has a meaningful relationship with the mother. 

21. The father acknowledged that if he were to relocate as a result of a posting this would involve costs to the mother, including travel costs, accommodation costs and local transport costs.  It is for that reason amongst others that the father's primary position is that he wished to remain in Brisbane. 

22. The father was of the view that the child's relationship with the mother and his stepsister Ms D could be maintained even if the father were to relocate with [X]. 

23. In relation to the impact upon [X] if the father were to relocate the father acknowledged that initially the child would be upset however, he was of the view that he would ultimately be fine as there has been some evidence that he has been able to transition when he left Town C to live in Brisbane. 

24. In relation to the costs of transport, should the father relocate, he indicated that he would be happy to meet the costs of flights provided the child support debt in the sum of $10,648.43 was paid out and the costs order in the sum of $22,658 was also paid out. 

25. The father acknowledged that it would be more difficult for the mother to spend time with [X] should he relocate if she were to stay in Brisbane. 

Ms A

1. Ms A agreed that [X] benefits from spending time with the mother and also agreed that there were benefits for [X] spending block time with the mother. 

2. Ms A also indicated that she had a concern in relation to [X] sleeping in the same bed with the mother and also not having his own room when in the mother's care. 

3. In relation to communication Ms A indicated and agreed that she and the mother generally communicate and that at times the communication was quite amicable “if things are going your [the mother’s] way” but otherwise communication was not so good. 

4. Ms A acknowledged that the child “absolutely” benefits from spending time with his mother. 

5. In relation to relocation and how that might affect the relationship between [X] and his mother Ms A indicated that the relationship has been maintained if not strengthened because there has been a relocation in the past and furthermore it is always anticipated that the father may relocate because he is a member of the Australian Army. 

6. During cross-examination the mother indicated that she had not told the father or Ms A where she was living and asked whether that was a problem.  Ms A said it was because the father and she needs to know where the child is in the event of an emergency. 

7. One of the issues is whether the block time, in the event the father is required to relocate and I make an order that he be permitted to relocate with the child, is whether that time should be prescribed. 

8. In the past the orders made by Judge Coker provided that the mother have nine consecutive days with the child twice each school term provided there was 14 days written notice of her intention to do so.  The father now seeks an order that there be nine consecutive days on two occasions each semester but nominates that they occur in week two and week six of the school terms. 

9. Ms A indicated it was very difficult to negotiate with the mother and that was why the prescriptive order was required. 

10. At the end of the cross-examination of Ms A it is clear that on two occasions out of the 13 or 14 occasions of block time there was an issue as a result of the mother nominating the time that she would have with [X].

The Mother

1. The mother was cross-examined in relation to her evidence and it was clear that up until January 2019 the mother has spent time with [X] at various locations.  The mother has spent time with [X] at the home occupied by Ms D, at an Airbnb, and at various homes where the mother has either house sat or visited friends. 

2. Notwithstanding that movement it is also clear that there have been no issues raised as a result of [X] spending that time in the mother's care at various locations. 

3. At its highest the father and indeed his current wife raise concerns about the time the child has spent with his mother in those circumstances but no evidence was called to show that any established risk or harm has been occasioned to the child as a result of those living arrangements. 

4. When asked why the mother would not provide precise details of where she was living her answer was “it wasn't necessary because Judge Coker said it wasn't necessary.”  This is an example of the lack of communication. 

5. The mother conceded that [X] sleeps in the same bed with her approximately 50 percent of the time and she did not see that there was any “big deal” in relation to that issue. 

6. The mother agreed that the child should have his own room and indicated that her room becomes his room when the child is spending time with her. 

7. The mother was quiet evasive with regards to whether she pays rent or otherwise.  Her answers in relation to payment of rent left me wondering what if any amount she pays to her daughter from time to time. 

8. The mother's evidence is that she currently earns $80,000 and has done so for approximately two months and notwithstanding earning that money she has not made any child support payments to repay the arrears. 

9. When asked whether she was intending to get her own home the mother indicated that she was and that she would do so within the next two months. 

10. The mother was taken to the orders sought by the father and the mother agreed to the orders sought by the father, save for:  

    a)Order 1(e) (sole parental responsibility including changes to the child's living arrangements that make it significantly more difficult to spend time with the other parent);  

    b)order 6 that the child be permitted to relocate to where ever the father is posted by the Australian Defence Force within Australia;  

    c)that [X] spend time with the mother at all times as agreed in writing between the parties or if no agreement can be reached as follows: 

    i)each alternate weekend from after-school Friday to before school on Monday or Tuesday if the Monday is a public holiday or pupil free day; 

    ii)in the event of the mother providing the father with a copy of a lease and providing a statutory declaration the child will have his own room when spending time with her, the child’s time with the mother be each alternate weekend from after school Thursday until before school on Monday or Tuesday if the Monday is a  public holiday or pupil free day. 

    d)order 23 that [X] will spend time with the mother at all times as agreed in writing between the parties but specifically during each school term as follows;

    i)for up to nine consecutive days commencing after school Friday in week two of the school term until 5:00pm on the Sunday nine days later; 

    ii)for up to nine consecutive days commencing after school Friday in week six of the school term until 5:00pm on the Sunday nine days later. 

    iii)If the mother proposes to spend time with [X] in accordance with orders 23a. and 23b. above the mother is to provide the father with 14 days written notice of her intention to spend such time with the child and to ensure the child continues his regular attendance at school and involvement in all current extracurricular activities. 

    e)order 27 that the cost of the child's travel to spend time with the mother be as follows;  

    i)the mother shall be responsible for booking and paying for [X]’s travel costs from the father's address to her address at the commencement of her time with [X] and the father shall be responsible for booking and paying for the costs of [X]’s travel time from the mothers address to the fathers address at the conclusion of [X]’s time with the mother; 

    ii)that should there be arrears of child support and or previously ordered or agreed costs outstanding then the mother shall be responsible for all such costs.

11. The mother also disagreed with orders 13 and 14 of the father's proposal, they relate to Christmas Day time. 

12. Ultimately the father conceded that in the event the parents are in the same location on Christmas Day then the child should spend time with one parent until 2:00pm the other parent until 2:00pm on Boxing Day. 

13. It is a fact that the mother made a number of allegations during the 2015 proceedings one of which was an allegation that the father had potentially sexually abused the child.[2]   

    [2] See paragraph 35 to 41 of reasons for judgment of Judge Willis

14. The mother accepted that it was a vile allegation and that notwithstanding that allegation the father had continued to facilitate a relationship between the mother and child. 

15. When asked whether she believed the father will continue to facilitate a relationship between the mother and child the mother said she believed he would and hoped that he did. 

16. When asked whether prescriptive time gives [X] certainty the mother indicated that she “supposed it did.”  However she indicated that it was not better than having no fixed date because she could not commit to it and she had to juggle a lot of other responsibilities. 

17. When asked whether she could negotiate with the father the mother indicated “yes as long as it's reasonable.”  At paragraph 21 of Her Honours judgement back in 2015 Judge Willis set out a glaring example of the type of communication between the father and mother.  Her Honour concluded that there was “no possible hope for meaningful communication between the parties.” 

18. During submissions the mother took me to an example of the type of negotiation that is currently being engaged between the parents.  The example the mother gave clearly indicates that even as at December 2018 the level of communication between the father and mother is extremely poor. 

19. The father through his wife sought confirmation that the child might be able to attend a special celebration.  Rather than answer in the negative or positive, the mother gave a long-winded reply relating to a request for other time without specifically answering the question asked of her.  This was reminiscent of the communication set out in Judge Willis’ reasons some four years earlier. 

20. The mother answered questions in cross examination in a very similar fashion. 

21. I formed the view that the mother's style of communication is very difficult to understand.  It appears she hears what she wants to hear, will not answer simple questions, but rather give answers that are long-winded and often times not on point. 

22. In light of the long-standing difficulty relating to communication between these two parents, I could not be satisfied that there is any real capacity to negotiate effectively, that is, without prolonged conflict, for the benefit of the child with regards to long-term decisions. 

23. Indeed it was suggested by counsel representing the father that the mother relied upon the father's lawyer to communicate with him because she could not communicate with the father and the mother agreed that is why she goes through lawyers. 

24. Furthermore when the father submitted an order during submissions with regards to the mother providing evidence of ownership of a property the mother's response was “I don't agree with the order I will simply file an affidavit.” 

25. When I pointed out to the mother that once I deliver my judgment there will be no proceedings on foot and therefore no capacity to file an affidavit the mother said “well then I'll communicate with the father's lawyers.” I once again pointed out that at the conclusion of the proceedings the father would not have lawyers engaged. 

26. It is clear that the mother cannot and/or will not communicate with the father with respect to difficult decisions concerning the child's best interests. 

Ms F (the family consultant)

1. Ms F confirmed that in her view the parties continue to fail in their attempts to make joint decisions regarding the parenting of [X].  For that reason she was convinced that orders should be made setting out as much certainty as possible. 

2. When asked whether [X] should relocate with his father if the father was subsequently posted Ms F stated that he should.  Ms F confirmed that she was of the opinion that the child has a meaningful relationship with the mother and that the father has facilitated time. 

3. Ms F was shown the orders sought by the father in relation to prescribed times during school term in the event the father relocates and Ms F was of the opinion that there should be as much structure and certainty around those orders as possible so as to prevent if not minimise the parties commencing future proceedings. 

4. Ms F was of the opinion that the child should have his own bed and that it was not ideal that he shares a room and/or bed with the mother noting that the child will soon turn 9 years of age. 

5. In relation to whether time should be reduced until such time as the mother provides evidence of the child having his own room and bed Ms F was of the view that time could continue as a temporary measure and when pressed as to how long the temporary measure should be continued for Ms F indicated that if the mother could not provide evidence that the child had his own room and/or bed by the commencement of term four of the school term then time should be reduced to the Friday until Monday. 

6. When cross-examined by the mother in relation to her prescriptive order opinion and with the assistance of questions from myself, Ms F indicated that she had weighed the competing risks, that is, the risk of further litigation and the risk of time not occurring, but remained of the opinion that the risk of further litigation is a greater risk for this child than the risk to him of not spending time with the mother in the event she could not spend time in accordance with prescriptive time orders. 

Assessment of the Evidence

1. Having considered all of the evidence I am satisfied of the following:  

   a)the father has facilitated and encouraged the meaningful relationship between the child and the mother;  

   b)the mother has done everything within her power to ensure that the child has every opportunity to develop a meaningful relationship between he and her;  

   c)the level of communication between the parents remains ineffective when it comes to long-term decisions for the child; 

   d)certainty around orders is required in the best interests of the child; 

   e)the child is primarily attached to the father; 

   f)the child will benefit and it is in his best interests for him to remain living in the secure family that he has been living in since January of 2015.

The Legislation

1. It is clear from the evidence that the child has a meaningful relationship with both of his parents.  It is also clear from the evidence that the child has been able to develop a meaningful relationship with both his parents as a result of the orders made, initially by Judge Willis, and subsequently by Judge Coker. 

2. I must weigh the evidence at the date of the hearing and determine how if it is in the child's best interest’s orders can be framed to ensure the particular child has a meaningful relationship with both parents.[3] 

   [3] McCall & Clarke [2009] FamCAFC 92 paragraph 121

1. This matter is different to most relocation matters in that there has been a previously ordered relocation in November 2016 and notwithstanding the relocation the child has continued to develop a meaningful relationship with the non-resident parent, in this case the mother. 

2. Furthermore the evidence establishes that not only will the father continue to facilitate a meaningful relationship between the child and mother, the mother will do all that is necessary to ensure that she can meet the child's needs by maintaining that meaningful relationship. 

3. The evidence does not satisfy me that there is a need to protect the child from any physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.  I am satisfied that this child's needs are completely met in each of the child's homes. 

Additional Considerations

1. The child's views were put before the court by way of Ms F's report at paragraphs 66 through to 77. 

2. I am satisfied having considered that evidence that [X] is content in his current living arrangements, content in the arrangements with regards to the time that he spends with his mother and that at times he misses his mother. 

3. I am also satisfied that the mother has discussed with the child aspects of this case and in particular her desire for the child to spend more time with her.  This is not child focused and has the potential to cause the child some confusion at least and potentially some harm if he is torn between his lived with experience and the needs of his mother. 

4. The mother needs to stop trying to influence the child by discussing adult, parenting, issues with the child. 

5. I am satisfied that the child is primarily attached to the father, has a secure loving attachment with Ms A, and has a loving and secure attachment to his mother.  Furthermore, I am satisfied that the child has a close relationship with his adult stepsibling Ms D and his juvenile stepsibling [B]. 

6. I am persuaded by the family consultant’s evidence that the relationship with his adult stepsibling Ms D is less important in terms of maintaining the close relationship that he has now.  That is, I am persuaded that as there is such a great difference in ages between the child and Ms D it is normal for that relationship to become more casual over time.  It is usual for adult stepsiblings to continue on with their lives without necessarily being wedded to spending time with their younger stepsibling. 

7. That does not mean that the relationship between the child and Ms D is less important it simply means that when weighing up the best interests of the child his connectedness to Ms D is less important than his connectedness to his juvenile stepsibling particularly in circumstances where his juvenile stepsibling, [B] lives in the same household as he and they are closer in age. 

8. The evidence establishes that both parents have done all that they can to participate in making decisions spend time with the child and communicate with the child.  It is indeed the parents dysfunction in being able to reach agreement in relation to major long-term issues that is one of the important aspects of this case. 

9. The evidence establishes that the mother is in arrears with regards to her child support assessment in the sum of $10,640.43.  The evidence further establishes that the father has been required to meet the majority of the obligations to maintain the child. 

10. With respect to section 60CC(3)(d) this is a major issue in this case. There is no evidence before me that a relocation will occur in the near future. The evidence is that the father is most likely to be required to relocate in the very near future. The evidence is that the father has been required to nominate his preference for future postings in the knowledge that he has been attached to a Brisbane regiment since 2016.

11. Furthermore the father acknowledges that his preference is that he be posted to another Brisbane based regiment rather than be posted interstate.  However in the event that the father is posted interstate it is his case that I should make a determination now with regards to his ability to relocate with the child rather than have litigation recommenced in the future. 

12. In circumstances where this child has been subject to litigation since he was 2 years old and noting that he will soon be 9 years of age, I am persuaded that a decision needs to be made now rather than wait until the father has been posted to a different location within the Australian Defence Force. 

13. With that in mind it is always difficult to make orders in relation to relocation, particularly in circumstances where a child has a meaningful relationship with both parents and noting that any move away from one of the child's parents has the potential to diminish the relationship between the child and that parent. 

14. I acknowledge that there is a legislative intent in favour of substantial involvement of both parties in a children's lives since the commencement of the Family Law Amendment (shared parental responsibility) Act of 2006.[4] 

    [4] See Taylor & Barker (2007) FLC 93-345; Morgan & Miles (2007) FLC 93-343; Mulvany & Lane (2009) FLC 93-404; McCall & Clarke [2009] FamCAFC 92

15. I further acknowledge that if a relocation were to occur it would be essentially because the father had no choice.  The clear evidence is that his preferred option is that he remain in Brisbane indefinitely.  The evidence establishes however that is a member of the ADF, he will be required to move if he is to take up further opportunities to progress his career. 

16. It is important to note that this is a case where both parents seek an order for the father to have sole parental responsibility and the evidence supports such an order being made. In those circumstances the provision of section 65DAA are not triggered.

17. It is a well-established principle that relocation cases are guided and judicial officers are bound by the same legislative pathway as other cases under the act.[5]   That is nowhere in the legislation is there reference to “a relocation case” or is there a separate category relating to “relocation cases.” 

    [5] Sayer & Radcliffe [20012] FamCAFC 209 paragraph 47

18. In Wendland & Wendland[6]  the Full Court dismissed an appeal against orders made by a Judge in the Federal Circuit Court who made orders in the following terms

    “that the child be permitted to relocate to wherever the mother is posted by the Australian Defence Force.”  

    [6] [2017] FamCAFC 244

19. At the time of the appeal both parties conceded that if the appeal were successful the words “within the Commonwealth of Australia” were to be inserted immediately after the word “wherever”. 

20. That case involved a child who was approximately 2 years of age at the time of trial.  The child had lived her whole life in a particular town, the child was spending regular time with her father every week and the family report writer did not support the child relocating. 

21. In this case this child has experienced a relocation, is now spending regular time with his mother and for a period of one year and ten months spent block periods of time with her and the family report writer supports an order for the child to relocate with the father. 

22. The evidence establishes that notwithstanding the relocation that has occurred, the child has continued to develop a meaningful relationship with his non-resident parent, in this case the mother. 

23. Whilst the father has given evidence that he would consider resigning from the Australian Defence Force provided he could receive a similar pay and similar conditions there is no evidence that it is likely that he would resign nor is it, in my view, appropriate that he be required to resign in order to stay in the Brisbane area. 

24. In those circumstances a relocation, or relocations, in the future are most likely having regard to the evidence that it is Australian Defence Force policy that postings be renewed every three years. 

25. It is the case that the mother advances an argument that her relationship with the child will be diminished if the relocation is allowed and furthermore that the child's relationship with the stepsibling Ms D would also be diminished. 

26. In Godfrey & Sanders[7] the appellate Judge at paragraph 36 said:

    “even if the movement results in the diminution of quality of the relationship, what the legislation aspires to is to promote a meaningful relationship, not an optimal relationship.”

    [7] [2007] FamCA 102

27. As I said there is little doubt that if I were to allow the child to relocate with his father there would be some diminishment of the quality of the relationship between the child and his mother in the event the mother could not continue to spend regular and consistent time with the child. 

28. However I am satisfied on the evidence that this child has been able to maintain and further develop a meaningful relationship with his mother notwithstanding the previous relocation and this has been brought about as a result of the father's efforts to facilitate such a relationship and the mothers endeavours to ensure that she is available for the child at all times consistent with the orders. 

29. I am satisfied that the father will continue to facilitate and promote a meaningful relationship with the mother and that the mother will continue to ensure that she is available for the child at all times consistent with future orders. 

30. The mother urges me to consider the effect of any relocation upon the child's relationship with his stepsibling Ms D.  I am persuaded by the family consultant’s evidence wherein she indicated that the relationship between this child and his adult stepsibling is important however it is natural for the adult stepsibling to have less involvement in the child's life due to the large age disparity between them. 

31. In weighing the best interests of the child with regards to an order for relocation as against an order to remain in Brisbane, I give greater weight to the best interests being met by the child remaining in a secure family arrangement that he has known for in excess of four years, that being living with his father and stepmother. 

32. Another important person in this child's life is his stepsibling [B].  The child himself acknowledges that he has a good relationship with [B] and that he misses her and looks forward to seeing her after he has been with his mother. 

33. The proximity in age as between this child and [B] is an important consideration in my view as it is likely that this child and [B] will spend considerable periods of time living together in the father's home due to their age. 

34. No doubt there will be a practical difficulty and expense involved in the event the father is permitted to relocate with the child.  The history of this matter and indeed these parties satisfies me that the practical difficulty and expense will not substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis. 

35. The history supports a finding that notwithstanding the fact that the father moved some 1300 kilometres away from Town C the child was able to maintain personal relations and direct contact with his mother and furthermore that his relationship with the mother developed even further. 

36. The mother gave evidence that her ability to ensure that the child maintained a relationship with her came at the expense of her career and her personal living arrangements.  I accept that it did.  I am also satisfied on the evidence that the mother will continue to put her needs secondary to those of the child. 

37. The mother has proven herself to be committed to ensuring that she and this child have a meaningful relationship to the best extent possible having regards to the family dynamic in this case. 

38. I am satisfied on the evidence that both parents have the capacity to meet the needs of the child including the emotional and intellectual needs. 

39. I am persuaded however that the mother does not fully appreciate the child's need to have his own space and his own bed when spending time with her.  The mother gave evidence that she did not consider co-sleeping arrangements to be an issue. 

40. I am persuaded by the family consultants evidence that such an arrangement, particularly having regard to the child's age and his behavioural issues, is not in the best interests of the child moving forward and that it is appropriate and in the child's best interests for the child to have his own room and his own bed in the very near future. 

41. To that end having heard from the family consultant and during submissions I proposed an order that the current weekend time, being from Thursday through to Monday, continue until the commencement of term four 2019, and that in the event the mother could not provide sufficient evidence of the child having his own room and bed then the spend time arrangements would be reduced to Friday until Monday until such time as evidence is provided. 

42. Both parties agreed that my proposed order was a sensible order although it is acknowledged the mother's preference was that the sleeping arrangements continue indefinitely into the future. 

43. Nothing turns in relation to subsection 60CC(3)(g) and (h) of the Family Law Act.

44. I am satisfied that both parents have shown they have a positive attitude to the child and to the responsibilities of parenthood and that they have demonstrated as much throughout the proceedings. 

45. Subparagraphs (j) and (k) will not impact upon this case. 

46. It was submitted by the father's Counsel that the order that the father sought would be preferable as it was the least likely to lead to the institution of further proceedings in relation to child. 

47. The family consultant agreed that the orders proposed by the father were least likely to lead to the institution of further proceedings in relation to the child and furthermore said that it was important that I make orders in those terms, having regard to the history of the matter. 

48. The mother argued that the need for prescriptive orders was unnecessary because there was an identifiable ability for the parents to negotiate.  I accept that the parents have been able to negotiate on issues relating to the day-to-day care of the child.  I do not accept that the parents have been able to demonstrate a capacity to negotiate matters relevant to long-term issues for this child. 

49. In circumstances where a posting with the ADF is likely I am also satisfied that it is in the child's best interests to ensure that I deal with that matter now rather than wait until such time as the posting has occurred. 

50. As I have said previously I am satisfied it is in the best interests of this child for litigation between these parents to cease and that I make orders that are least likely to afford either party the ability to institute further proceedings.  After seven years of litigation in a child's life where he is yet to turn 9 years of age it is clearly in the child's best interests to do so. 

51. The father seeks an order that the mother be responsible for all costs associated with the child's time with her until such time as she pays the arrears of child support and the previously ordered costs order. 

52. The mother proposes that she meet the costs for the block periods of time, twice per term, in the event father is permitted to relocate, and that if there is no debt the father pay all costs and if a debt remains that the parents share the costs of travel for holidays. 

53. The evidence establishes that the mother did not pay child support until such time as her wages were garnisheed and furthermore that she has not attempted to meet the costs order at all. In those circumstances the father has been responsible for all costs associated with the maintenance of the child.

54. The mother attempted to introduce into evidence through submissions that she has met certain payments related to school and excursions however as I pointed out to her there is no evidence before the court in relation to those expenses and as a result I cannot make a finding that the expenses have been paid. 

55. It is important that parents meet their obligations pursuant to law to maintain a child. The debt relating to child support payments is a debt to the Commonwealth of Australia. The Commonwealth of Australia has the means to recover that debt now that the mother is working full-time.

56. The debt to the father is a debt that he can enforce through enforcement proceedings.  The mother should meet her obligations as otherwise costs orders in this jurisdiction become entirely ineffective and mean nothing. 

57. Balanced against those comments is the fact that, in the event the father relocates with the child, the child's capacity to maintain a meaningful relationship with his mother may be adversely affected if she is required to meet all of the costs associated with spending time with her son. 

58. I have to weigh up the competing issues namely, whether a costs order should be paid as against whether a child's relationship with the parent should be maintained.  This is a parenting proceeding and the best interests of the child is my paramount concern.  In those circumstances I must give greater weight to the need for a child to maintain a relationship with his parents. 

59. In those circumstances I am persuaded that the orders sought by the mother on this issue are the orders that best meet the child's best interests. 

60. In those circumstances, having considered all of the evidence and for the reasons outlined I am satisfied that the orders I have made are in the best interests of the child.

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date:  25 June 2019