OSMOND & BRAND

[2016] FCCA 2973

FEDERAL CIRCUIT COURT OF AUSTRALIA

OSMOND & BRAND [2016] FCCA 2973

Catchwords:
FAMILY LAW – Interim parenting – where the parent having orders for sole parental responsibility and for the child to live with him seeks to relocate to Brisbane – where such a move is opposed by the parent who is to spend time with the child – where the parent seeking to relocate with the child has sole parental responsibility – where the circumstances are clearly distinguishable from a situation arising from settled arrangements without orders or equal shared parental responsibility – where interim leave to relocate is ordered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 61DA, 60CC

Cases cited:
Morgan & Miles (2007) FLC 93-343
Goode & Goode (2006) FLC 93-286
Cowling and Cowling (1998) FLC 92 - 801

Applicant: MR OSMOND

Respondent: MS BRAND

File Number: TVC 1294 of 2012

Judgment of: Judge Coker

Hearing date: 2 November 2016

Date of Last Submission: 2 November 2016

Delivered at: Townsville

Delivered on: 2 November 2016

REPRESENTATION

Counsel for the Applicant: Mr A.L. Raeburn

Solicitors for the Applicant: Dillon Bowers

Counsel for the Respondent: Ms V. Keegan

Solicitors for the Respondent: KLP Family Law

ORDERS UNTIL FURTHER ORDER

1. That the Father have leave to relocate to Brisbane with the child, X born (omitted) 2010, from January 2017.

2. That until the Father relocates to Brisbane, the Orders of the Court of 22 January 2015 remain operative.

3. That upon the Father relocating, the Mother’s time to be spent with the child pursuant to the Orders of 22 January 2015 be varied as follows:

   (a)For 10 days during the end of Term 1 and end of Term 3 school 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 the end of Term 4 school holiday period, for the first half in even numbered years and the second half in odd numbered years;

   (d)Additionally, should the Mother be in Brisbane, then for 2 occasions each school term for up to 9 consecutive days from after school on a Friday until 5.00pm on the Sunday 9 days later, subject to the Mother providing 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 extra-curricular activities.

4. That the parent not having the child in their care have the opportunity for telephone or electronic communication as follows:

   (a)On two occasions each week at times to be nominated by the Father; and

   (b)Each parent when they do not have the child in their care on special days, including Easter Sunday, Christmas Day, the parent’s or child’s birthday, sibling’s birthdays, Father’s Day and Mother’s Day.

5. That the costs of the child’s travel to spend time with the Mother be as follows:

   (a)The Father be responsible for such costs, provided however that should there be arrears of child support and/or previously ordered or agreed costs outstanding, then the Mother pay the cost for the child to come into her care at the commencement of time with the child and the Father pay the costs for the child’s return to his care; and

   (b)If there are no arrears, then the Father be responsible for the entirety of the child’s travel during the gazetted school holiday periods.

6. That the matter be adjourned for further mention to 10.00am on 14 February 2017, to give consideration to ordering a Family report and to whether the venue for the further hearing of the matter should be changed. 

7. That the costs of both parties be reserved.

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 TOWNSVILLE

TVC 1294 of 2012

MR OSMOND

Applicant

And

MS BRAND

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

INTRODUCTION

1. On 22 January 2015 Judge Willis of this Court made extensive orders with regard to the parenting the child, X.  X, born (omitted) 2010, is the child of Mr Osmond, whom I shall refer to as the father, and Ms Brand, whom I shall refer to as the mother.  The first and perhaps most significant of the orders that were made by Judge Willis on 22 January 2015 related to the issue of parental responsibility.

2. Order 1 of the orders provided specifically as follows:

   That the father have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child X born (omitted) 2010 subject to the communication and notification of such decisions to the mother including but 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 for the child to spend time with the other parent.

3. The orders then went on to provide for the child to live with the father and for X to spend time with the mother at all times as may be agreed in writing between the parties and specifically detailed the time, conditional upon the terms of order 5.  The orders provided for X to spend time with the mother each alternate weekend from after school or day care Friday until before school or day care the following Monday or Tuesday should the Monday be a public holiday or pupil-free day and also provided for each alternate Thursday, being the Thursday that follows the mother’s weekend with X from after day care or school on Thursday until before school or day care the following Friday.

4. The condition that was referred to in the order with regard to the mother’s time to be spent with the child related to the mother engaging in counselling with a psychologist to address her hostility toward the father and her obstructionist attitude towards him playing a role in X’s life.  It was also noted in that order that the mother was granted leave to provide a copy of any family report prepared in the matter, and a copy of the reasons that were given by Judge Willis to the psychologist to assist with the counselling process that might be entered in to.

5. The mother was to file and serve an affidavit within six months of the date of the order, annexing evidence from a psychologist as to her compliance with the order.  That has obviously occurred, and whilst there may now be some complaint or concern expressed with regard to the exact terms of any therapeutic process that is being undertaken, it certainly appears clear that the mother had engaged as directed with a psychologist.

6. The orders went on to note arrangements with regard to the opportunity for each parent to spend time with X during holiday periods, and also then provided specifically for arrangements in relation to special days that might be appropriately required to be made available for the purposes of both parents involving themselves in all aspects of X’s life.  The orders were quite comprehensive, and noted particularly at order 15, the following:

   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 to debate with the mother. 

7. I must frankly say that I have not seen such an order included in orders before, but noting the various matters that were touched upon by Judge Willis in the reasons that were given by her in respect of this matter, it was clear that using the words that the mother’s own counsel used in her submissions to me, “Judge Willis was scathing in her criticisms of the mother and her attitude”.

8. I provide that background in relation to this matter because it is clear that since the hearing was conducted in this matter on 15 to 17 October 2014, in other words, just a little over two years have passed, there have been in place arrangements which provided, for about three months, for X to live on an equal shared care basis with each of the parents, and, from the orders being made on 22 January 2015 for X to live primarily with his father and to spend time with his mother.

9. It is unfortunate that within such a short period of time, less than two years, a further application has come before the Court which seeks some significant variations in relation to the orders.  They can, however, be summarised as arising from circumstances that the father says now exist.  He is a member of the (employer omitted).  He has been posted to Brisbane, and is to (omitted) in, to use the terminology utilised by the (employer omitted), on 17 January 2017. 

10. The father says that it is necessary for him in the progressing of his career with the (employer omitted) to take the posting, and though there would appear to be some prospects of him being able to remain if he asked to do so in (omitted), it would be a situation that would give rise to delay in further progress being made by the father in his career.  The father says, in any event, that he accepted the posting and will be taking up the position in Brisbane on 17 January 2017. 

THE APPLICATION:

1. Accordingly, the father’s application is for variation to the existing arrangements with regard to the parenting of X, so as to enable the father to take up that posting, and for X to relocate to Brisbane with the father and his new wife.  A number of reasons are given for the relocation, including, of course, the benefits to the father’s career, as well as opportunities for family support that would be available for the father’s wife in Brisbane, there being family of the father’s wife in Brisbane who would be able to provide for and support her, knowing, in particular that she is to give birth to the couple’s first child, early in the new year.

2. The father says that there is not any real reason or basis upon which he should not be able to relocate with the child, and clearly it was envisaged in the orders that were made by Judge Willis that the father would be the parent who would make such decisions, in relation to the parenting of X, noting particularly that he was to have sole parental responsibility with regard to changes to the child’s living arrangements, that make it significantly more difficult for the child to spend time with the other parent.

3. Clearly, a relocation to Brisbane would change the circumstances that exist with regard to mother’s opportunity to spend time with the child, particularly during the gazetted school terms, where it would be obvious that alternate weekends and alternate Thursdays would not be open to be utilised by the mother unless she were to move.  The father, therefore, says that those orders should be varied, and that there should be alternative arrangements put in place with regard to the mother’s time to be spent with the child.

4. In particular, the initial proposal by the father was that there should simply be a continuation of the existing arrangements in relation to school holidays, which, pursuant to the orders that were made by Judge Willis included as and from the commencement of X’s attendance at prep school, the opportunity for one half of the Queensland gazetted school holiday periods to be spent with each of the parents.

5. No doubt in discussions that were held between the father and his legal representatives prior to the commencement of the hearing today, it was acknowledged that there might appropriately be further opportunities for the mother to spend more time with X during the school holiday periods, and it was proposed that for one holiday period it be for the entirety of that period, perhaps, say, the end of term 2 in each year, as well as for an extension of time in respect of the other two shorter holiday periods concluding or occurring at the conclusions of terms 1 and 3, so that the mother would have, say, 10 days with the child, as well as for there to be a continuation of the arrangement with regard to Christmas school holidays being shared at the end of term 4.

6. Otherwise, the father says that there needs to be various modifications to the orders that were previously made by Judge Willis upon any move occurring including, obviously, variations to arrangements in relation to communication, be it by telephone or other electronic means, as well as the opportunity for the telephone communications with one parent or the other communicating with the child when he is not in their care on special occasions such as Easter, Christmas, parents' birthdays, Mother’s Day, Father’s Day and the like.

7. The father also proposed in his initiating application, which was filed on 17 August 2016, that there be a general opportunity for the mother to spend overnight time with X if the mother were visiting Brisbane, upon the giving of appropriate notification and upon the condition that the mother would ensure that X continued to attend school and participated in any extracurricular activities which might currently be in place, with regard to the child.

8. It was also suggested that if X’s siblings, the mother’s children of a previous relationship were visiting Brisbane, then the father would attempt to facilitate time with X spending time with his siblings, again subject to being given sufficient notice of, say, 14 days in that regard.  Some greater particularity was provided again, following discussions with the father’s legal representatives prior to the commencement of these proceedings, and it appears clear that what is now suggested is that there would be the opportunity for a period of up to, say, a week on one or two occasions each term, should the mother be in the same locality as the father, for her to spend time with the child, but it was suggested that that would, of course, still be subject to the requirement that X continue his school attendance and involvement in any extracurricular activities.

9. Additionally, the father’s proposals also included a suggestion that the costs of travel be split as between the parties.  The father’s proposal was that the mother should be responsible for the travel costs in relation to X coming in to her care and the father to be responsible for the travel costs associated with X’s return to his care at the conclusion of any holiday period.  Again, with clarification, it was suggested that upon there being a clearing of any debts that might be owed by the mother to the father either in respect of child support or outstanding costs amounts that have been ordered and/or agreed between the parties, then the father might make a greater contribution towards the costs associated with travel.  I shall come to that a little later in these reasons.

10. Finally, it was proposed that there should be orders made with regard to the mother being responsible for the payment of the father’s costs in relation to the bringing of this application, no doubt arising, it was suggested, from the fact that the parties did engage in some form of family dispute resolution, but were unable to reach an agreement.  And as it was the case that the father had and still continues to have sole parental responsibility, that he could and should be able to make the moves that he suggests are appropriate, without the need for litigation.

11. I think, understandably, out of an abundance of caution, it is the case that the father has sought the orders contained within the initiating application filed in relation to these proceedings.  The mother filed a response in relation to the application on 17 October 2016.  It was, in fact, the date preceding the day when the matter was to come before the Court, but because of the volume of work that was before the Court at that time it was not possible for the matter to be heard.  It was for that reason that the proceedings were held over until today.

12. The mother’s response, however, seeks orders on both a final and interim basis in basically the same terms.  Firstly, it is proposed that there be two alternatives considered.  The first is that if the father relocates to Brisbane, that X not accompany him, but rather that the child live with the mother and spend time with the father. 

13. The mother’s proposal in that regard is that it be for one half of the Easter school holiday period and for the whole of both the June/July and September/October end of term 2 and end of term 3 gazetted school holiday periods, as well as for one half of the Queensland gazetted school holiday, end of term 4 Christmas holiday period.  The mother also proposes that the parents should have equal shared parental responsibility for the child and to consult with each other in relation to significant parenting issues. 

14. In the alternative, the mother proposes that if the father is granted leave to relocate with X, then that orders similar to those proposed by her in relation to time to be spent by her with X be put in place.  In other words, one half of the Easter school holiday period, the entirety of the end of term 2 and end of term 3 school holiday periods and one half of the Christmas holiday period. 

15. The mother also proposes, that in that event, that the father, as he would be living in Brisbane and is the person seeking the change, should be responsible for the entirety of the travel expenses between (omitted) and Brisbane, so as to enable X to spend time with both parties.  It was also then proposed that, as suggested by the father also, if the father remained living in (omitted) that the orders of 22 January 2015 remain operative.  The mother also sought that her costs of and incidental to the application be paid. 

DISCUSSION

1. It was submitted on the part of both parties in relation to this matter, that it was, a little different to what might be called, the normal relocation case.  Unfortunately, more often than not, relocation cases are actually applications with regard to the issue of a recovery order seeking the return of a child who has been, without authorisation of at least the other parent, moved so that their circumstances have radically changed. 

2. That is not the case here for a number of reasons, not the least of which is that the father seeks the opportunity for the move, notwithstanding that on the face of it he would have had the absolute right to effect the change after consultation with the mother and, if no agreement was to reached, then to make the decision himself.  Certainly that was contemplated pursuant to the orders of Judge Willis as being a factor to be considered, specifically noting that order 15 did note that the father was the party who held sole parental responsibility in relation to long-term issues and that such issues were not, “for debate with the mother”.  The father has, in my assessment, acted appropriately in bringing the application because it is necessary for a determination to be made in relation to the proceedings. 

3. Where there are changes contemplated or proposed, in relation to the parenting of the child, there does need to be some consideration of what would be the proper course to follow. However, I am mindful of the fact that following a three-day hearing and the provision of a lengthy set of reasons in relation to what might be the position in respect of the proceedings, it was determined that the father should be the sole arbiter and determiner of what should occur, in relation to this child’s future long-term arrangements.  That is not to say that the mother should not properly be consulted and to have involvement in relation to the determination and if, as is the case here, there is disagreement, to have the opportunity to contest whatever decision should be made. 

4. No matter what course is followed, it is noteworthy, of course, that the statutory or legislative pathway must be followed in relation to the determination of what should occur.  In that respect, again, understandably, I was referred by counsel for the mother to the decision of Boland J sitting as the Full Court in Morgan & Miles (2007) FLC 93-343. There, her Honour, in determining an appeal from a decision made with regard to parenting, provided some lengthy comments in relation to the process to be followed. At paragraph 85, she said the following:

   In Goode –

   referring, of course, to Goode & Goode (2006) FLC 93-286 –

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

1. Her Honour then set out paragraphs 71 through 73 of the decision of the Full Court in Goode & Goode (supra), and they are in these terms:

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

   72.  In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.  This means where there is a status quo or well-settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

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

2. There is, of course, a significant distinction to be drawn in relation to those comments with regard to Goode & Goode and the circumstances that exist here.  The first is that there is no longer the presumption of equal shared parental responsibility.  Following a three-day hearing in October of 2014, Judge Willis determined that the best interests of this child were to be met by there being orders made for the father to have sole parental responsibility and, of course, as was emphasised by counsel for the father, there was no appeal in relation to those determinations and the matter has proceeded upon that basis ever since the decision was made in January of 2015.  It is also not the case that unless the presumption is rebutted then consideration must be given to equal time and substantial and significant time because, of course, there has already been a determination that the presumption of equal shared parental responsibility has been rebutted and that the child’s primary care and the time spent primarily with one person or the other, vests in the father. 

3. It is therefore not simply a case of leaving a situation that has existed for a significant period of time until there can be a more complete or thorough examination of what might or might not be in the best interests of the child.  That has already occurred.  The father has, however, now indicated that there is to be, from his perspective, at least, a significant change effected in relation to what should occur with regard to the parenting of this child and, of course, how the relationship with the child and the mother can be continued. 

4. I note that Boland J in Morgan & Miles went on to comment at some length about the difficult issues that arise in relation to relocation cases.  In particular, and I was referred specifically to paragraph 88, her Honour noted:

   It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.  It further appears to me the comments of Warnick J in C & S [[1998] FamCA 66] remain apt and relevant to determination of these cases.

5. As I understand it, the comments that her Honour were referring to made by Warnick J in C & S (1998) FamCA 66 were these comments:

   In my view, it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand. 

6. Again, however, the circumstances in relation to this case are different.  There has already been the significant determination made with regard to the welfare and the best interests of X, and the determination made by Judge Willis was to the effect that the appropriate course was for there to be an order placing the child in the care primarily of the father and vesting in the father primary responsibility with regard to determinations, in relation to the child’s long-term care, welfare and development. 

7. I make all of those comments in relation to the matter because it is necessary to emphasise the difficulties and the complexities that arise in relation to this particular matter.  I note also that her Honour, talking in Morgan & Miles (supra) about the different considerations that need to be looked at, sought to draw some distinctions between children of various ages and what might be the effects of relocation. She said at paragraph 91 the following:

   This leads me to conclude that it is not distance per se which should be the determinative criteria.  In many cases what is relevant is the consequence of the move or proposed move.  The issues to be determined may be quite different, for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship.  

   Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non-relocating parent, particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non-relocating parent can be maintained and fostered.

8. It seems to me that that is a significant consideration in relation to these proceedings.  It was touched upon by the legal representatives for both parties in the submissions that were made in relation to the proceedings.  It was emphasised by counsel for the mother that to make an order which would enable the father to relocate with the child gives rise to there being, as she put it, “too much potential for damage”.  It was therefore suggested that an interim relocation would not be appropriate but rather that there should be a preclusion on the child leaving (omitted) until at least there could be a thorough investigation and inquiry into what might or might not be the consequences for X. 

9. I must say that there is some strength in that particular argument in relation to the matter, but it goes both ways.  I say that in the sense that I understand that the father has indicated his determination to take up the promotion and posting to Brisbane.  Accordingly, this little boy having lived for the last 22 months primarily with the father would be thrust into a situation where, if he were not to relocate, then he would be separated from the parent who has primary responsibilities in relation to the care of the child. 

10. The mother’s proposal with regard to there then being a radical change, which would see the child placed back into her care is one that has just as great if, with respect, not greater concerns, as to what damage might be done.  If nothing else, the determination by Judge Willis in relation to this matter was that there were very serious concerns with regard to the mother and her attitude to the father, and whilst there may have been some steps taken, it is clear from the material that has been filed, that there is still difficulty in the exchanges and relationship between the mother and the father. 

11. I am left, therefore, in a difficult position of noting that no matter what might be ordered in relation to this matter, there is risk to this child.  It would be trite to say that life is full of risk, but it is clear that no matter what decision might be made, this little boy’s circumstances will change and he has already been subjected to a number of significant changes in his life. 

12. The father says that the relationship with the mother can be fostered and developed and continued on a meaningful level, with some adjustments to the time to be spent with the mother, removing, obviously, the opportunity for time during the gazetted school terms other than if the mother were to be in the same locality as the father, but with adjustment to the amount of time spent during the holiday periods. 

13. The mother says that the more appropriate course would be for the child to remain in (omitted) either in her care or alternatively, though not her preference, in the care of the father’s wife.  That would, of course, give rise to further difficulties, in my assessment, in relation to the family and the dynamics, because this little boy could quite possibly be left in a situation where he is being cared for by neither of his parents. 

14. I find myself therefore in a situation where I struggle with what orders should be made.  As would certainly be well known to the legal representatives appearing in these proceedings, it is rare that I would ever consider a relocation on an interim basis.  There are obviously issues that arise and as were identified by Boland J and commented upon also by Warnick J in C & S (supra), there are factors which can more appropriately and more fully be considered in a full hearing, where evidence is tested. 

15. The distinction here is that evidence has been tested in relation to this matter and the determination was made that the most appropriate and proper course with regard to this child was for the child to live with the father.  The father has taken up a position that has been offered which will further his career.  There are obviously reasons that he would seek to do that, and whilst it may be suggested in part that they are, therefore, self-centred reasons rather than child-focused, one can imagine that the furthering of his career will lead not only to financial improvement in relation to the father’s household but also no doubt benefits that would flow from the satisfaction of progressing in his career. 

16. I have come to the determination, therefore, considering all the matters that I have referred to that it is appropriate that on an interim basis relocation should be authorised in relation to this child and to enable the child to live with the father in Brisbane. 

17. But that does not mean that the determination is complete.  Circumstances will have radically changed and certainly the mother’s position is to say that on a final basis there should be some significant changes with regard to parenting.  That is a matter for another day, but it is a matter which will need to be considered in due course. 

18. What does need now to be looked at is what arrangements are appropriately required to be made, so as to ensure that the meaningful and proper relationship that is currently in existence between the mother and this little boy are able to be fostered and developed.  As I noted, Boland J did comment upon the fact that there may be little impact on maintaining a meaningful relationship between a child and the non-relocating parent, particularly if the child has a history of living predominantly with the relocating parent.  I accept absolutely that this child has not lived predominantly with the father, but if one is to deal with the present and the future, the fact is that for the last 22 months, this little boy has lived with his father predominantly, and that is a factor of some significance in relation to the matter. 

19. I am also satisfied that the relationship with the mother can and should be appropriately fostered by additional time being made available to the mother to spend time with X during school holiday periods.  I note what is proposed by each of the parties, in relation to the matter in that regard and have come to the view that whilst the mother understandably would seek considerably increased opportunities for time to be spent with X, there is also the need to foster and continue the relationship that X has with his father, on a basis not only of the school terms but also, one would hope, the times that are to be spent during school holiday periods. 

20. The compromise that I think appropriate in that regard, therefore, is to vary the orders that have been made in relation to the mother’s time to be spent with X during school holiday periods, such that the mother has the opportunity to spend 10 days with X during the end of term 1 and end of term 3 school holiday periods in each year, being the first 10 days in even-numbered years and the last 10 days in odd-numbered years. 

21. Additionally and quite properly, in my assessment, it would be the case that the mother should have the opportunity to spend the entirety of the end of term 2 school holiday period with the child and that there be a continuation of the first half and second half of the end of term 4 school holidays, again on the basis of the first half in even-numbered years and the second half in odd-numbered years.

22. Additionally, whilst the mother understandably, I think, was concerned as to the arrangements with regard to her opportunity to spend time with X should she be in Brisbane, it would be appropriate for the mother to have the opportunity to spend, in my assessment, up to nine consecutive days with the child on up to two occasions each school term, bearing in mind that that would mean from after school on a Friday until a Sunday 10 days later subject, of course, to the mother providing 14 days written notice of her intention to spend such time with X and to ensure that X continue his regular attendance at school and involvement in all current extra-curricular activities.  It would give the mother the obvious opportunity to spend more time with X and, of course, to involve herself in activities that would not normally be available with the parties living so far apart.

23. I also intend to make orders, in relation to the opportunity for telephone or electronic communication by the parent not having the child in their care on two occasions each week at times to be nominated by the father, as well as, of course, for there to be specific arrangements in place for each parent, when they do not have the child in their care to communicate with X by telephone or electronically on special days, including, Easter Sunday, Christmas Day, the parent’s or the child’s birthday, siblings’ birthdays, Father’s Day, Mother’s Day and the like. 

24. There are also, however, issues that arise with regard to the travel costs. I am mindful of the proposal that has been put by the father in relation to the sharing of travel costs but more particularly I am obviously aware of the fact that the father is the one who seeks to make the move and that it would be the father’s move that gives rise to the additional expense that would arise, in relation to either parent collecting or returning the child. By the same token, I am also mindful of the fact that one of the considerations which must be looked at, pursuant to the provisions of section 60CC of the Family Law Act, is the parents’ financial contributions to the support and needs of the child. 

25. It might be that the mother is in arrears.  It might be that she has significant additional expenses to make arrangements for but, with respect, the primary consideration here for the Court and, I would have hoped, also for each of the parents was to ensure that the needs of the child, including the child’s financial needs, were able to be met, as a result of appropriate and proper contributions by each parent. 

26. In the end, I therefore come to the view that the appropriate orders with regard to travel, at least until there is some final determination in relation to the matter, is that the father should be responsible for the costs of the child’s travel to spend time with the mother provided, however, that should there be any arrears of child support and/or previously ordered or agreed costs that remain outstanding, then that the mother pay the costs of the child to come into her care at the commencement of time to be spent with the child and the father pay the costs for the child’s return to his care. 

27. Once there are no arrears, in my assessment, as indicated, it is appropriate that the father should be responsible for the entirety of the costs associated with the child’s travel during the gazetted school holiday periods.  Of course, it would not be appropriate, nor would I consider making an order with regard to the sharing of any costs associated with the mother spending time in Brisbane, as that would be additional to the other times that are specifically outlined, in relation to these proceedings. 

28. I should indicate that I also gave consideration as to whether I should order the preparation of a family report in relation to this matter.  There was certainly strength in the submission made on the part of the mother that there needs to be some further investigation in relation to these proceedings.  I have not determined, however, that it is appropriate that I should make such an order in relation to this matter at this time because it is unclear exactly what might be the final position taken, with regard to each of the parents.  It may be, for example, that this and I do not mean to be disrespectful, skirmish has led to a determination which would lead then to a re-settling of the circumstances between the parties and there may not then be further litigation.  If, however, there is to be further litigation in relation to final arrangements both with respect to with whom X should live and/or other arrangements with regard to where X should live, then it may be essential that a family report is obtained. 

29. But at the present time, I do not intend to make any such order in relation to the matter.  Rather, I intend to adjourn this matter for further mention before me to 14 February 2017 at 10 am, at which time there can be consideration of what is the position of each of the parents and whether they, one or other, seeks to press their final application in relation to the matter.  At that time, I would also then, of course, hear argument with regard to a venue for any final determination in relation to the proceedings.  I will direct that my reasons in relation to this matter be published and made available in due course to the parties so as to clearly have articulated the reasoning behind the determination made with regard to the matter.

30. I should also indicate that I will reserve the costs of both parties.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Coker.

Date: 16 November 2016