Payne and Payne

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAYNE & PAYNE

[2014] FCCA 2319

Catchwords:
FAMILY LAW – Parenting – relocation – where the sole primary consideration is the benefit to the child of having a meaningful relationship with both parents.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA , 65DAA(5)

Commonwealth of Australia Constitution Act 1900, s.92

International Convention on the Rights of the Child

Burton & Churchin and Anor [2013] FamCAFC 180
U & U [2002] FLC 93-112
Beaumond & Hardiman [2013] FCCA 1173
MRR & GR [2010] HCA 4
Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
Dylan & Dylan [2007] FamCA 842

Applicant:

MS PAYNE

Respondent:

MR PAYNE

File Number:

PAC 375 of 2014

Judgment of:

Judge Harman

Hearing dates:

19-20 May 2014

Date of Last Submission:

20 May 2014

Delivered at:

Parramatta

Delivered on:

22 May 2014

REPRESENTATION

Counsel for the Applicant:

Mr Heazlewood

Solicitors for the Applicant:

Caldwell Martin Cox

Counsel for the Respondent:

Mr Shaw

Solicitors for the Respondent:

Christine J Shanahan & Associates

ORDERS

The parties Ms Payne and Mr Payne shall have equal shared parental responsibility for their son X born (omitted) 2011.
That until the child commences fulltime schooling, he shall spend time with the Father as follows:
(a)On the first weekend after the date of these Orders and every six weeks thereafter:
(i)In Victoria for 5 nights from 12noon on the Tuesday until 12noon on the Sunday;
(b)On the fourth weekend after the date of these Orders and every six weeks thereafter:
(i)In NSW for four nights from 12noon on the Wednesday until 12noon on the Sunday;
(c)At other times as the parties may mutually agree.
That, upon the child commencing fulltime schooling, he shall spend the following additional time with the Father:
(a)For 2017 and each alternate year thereafter, for the first half of each of the New South Wales school holiday periods, commencing at 12 noon on the Saturday following the conclusion of the school term and concluding at 12 noon 7 January in the Christmas holidays;
(b)For 2018 and each alternate year thereafter, for the second half of each of the New South Wales school holiday periods, commencing at midday 7 January and concluding at 12 noon on the day immediately before the first day of the next school term.
(c)At other times as the parties may mutually agree.
That the arrangements in Orders 2 and 3 shall be suspended during the Christmas period so that:
(a)For 2014 and each alternate year thereafter, the child shall be with the Mother from 12 noon on 23 December until 12 noon on 27 December;
(b)For 2015 and each alternate year thereafter, the child shall be with the Father from 12 noon on 23 December until 12 noon on 27 December.
That, in order to facilitate the child's time with the Father:
(a)In accordance with Order 2(a), 3(a) and 3(b) above, the Mother shall drive the child to the (omitted) Park at (omitted) at the commencement of all periods in which the child is to be in the Father's care and the Father shall likewise deliver the children to the (omitted) Park at (omitted) at the conclusion of all periods in which the child is to be in his care;
(b)In accordance with Order 3(b) above, the parties shall equally bear the costs of return flights for the Father between Melbourne and Sydney with the Father to book and pay for the flight for himself to fly from Melbourne (Tullamarine) to Sydney on the Wednesday, and the Mother to book and pay for the flight for the Father to fly from Sydney to Melbourne (Tullamarine) on the Sunday;
(c)The Mother shall transport the child to the residence of the Father's sister at (omitted) to arrive within 30 minutes of the Father arriving at Sydney Airport and the Mother shall collect the child from the same residence at (omitted) 90 minutes prior to the Father's return flight to Melbourne.
That the child shall communicate with the Father by telephone or FaceTime during all periods in which he is in the Mother's care:
(a)At 5:00pm each day from Saturday to Wednesday, and
(b)At 6:00pm on Thursday and Friday.
That the child shall communicate with the Mother by telephone or FaceTime during all periods in which he is in the Father's care:
(a)At 5:00pm each day on Saturday to Wednesday, and
(b)At 6:00pm on Thursday and Friday.
That both parties shall do all things necessary to ensure that X's stuffed toy giraffe and blanket travel with him between the two households.
That whilst the child is in their respective care both parents shall advise the other as soon as reasonably practicable of any major medical issues involving the child and each parent shall keep the other properly informed of any required treatment or medication in relation to the said child and both parents shall ensure that the proper administration of such treatment or medication is performed by them.
That both parents shall keep the other advised in writing of their current residential address and contact telephone number during all periods that the child is to spend time with them.
Each parent shall, if they have not already done so, do all things, sign all documents and give all consents, authorities and instructions necessary to enable the details of each parent to be recorded with the school attended by the child, as a parent and emergency contact person and to enable each parent to obtain directly from that school such information, documents and reports (whether oral or written) as they may desire and to attend all and any events at the school to which parents are invited or encouraged to attend.
Pursuant to S.65DA (2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Pursuant to Rules 14.06 and 24.04 of the Federal Circuit Court Rules and within 35 days the parties and each of them are to ensure that copies of the following documents are provided to all other parties, namely:
(a)Copies of income tax returns, assessment notices and BASs for the last 3 completed financial years for that party personally and for any entity in which that party has an interest (such as a private company, trust or partnership);
(b)An up to date statement with respect to any superannuation interest of that party together with a valuation of the fund if not an accumulation interest;
(c)Copies of bank statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest such as a private company, trust or partnership;
(d)Copies of credit card statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest;
(e)Market appraisals with respect to any parcel of real estate in which any party has an interest;
(f)Any document proving or tending to prove any allegation contained in that party’s Financial Statement or Affidavit;
(g)Copies of market appraisals or computer site print outs as to value of:
(i)Any motor vehicle the value of which is not agreed;
(h)Copies of the following documents:
A list particularising all documents provided pursuant to Order 12 above hereof shall be served with the documents so produced and pursuant to Rule 14.09 of the Federal Circuit Court Rules and no party shall be entitled (save with leave of the Court) to put a document into evidence unless that document was disclosed and enumerated in the above list.
Inspection of all documents produced by a party as above shall occur within fourteen (14) days of production.
No later than fourteen (14) days after inspection of documents pursuant to the above Order, the parties and each of them are to ensure that any request for the provision of addition documents is made of the other party/ies and any documents requested shall be provided, with an additional list particularising documents produced, within a further fourteen (14) days.
In the event that that there then remains dispute as to the value of any parcel of real estate upon exchange of appraisals (within 35 days) then the parties are to seek, within a further fourteen (14) days, to negotiate an agreed figure and, if no agreement is reached, to obtain, file and serve a joint valuation of such parcels within a further 14 days and the cost of the valuation report shall be met by the parties equally and the valuation report shall be filed with the Court prior to mediation.
The Applicant shall within 14 days of today’s date serve upon the Respondent a draft balance sheet to include all assets, liabilities, superannuation interests, financial resources and property suggested to have been disposed of or otherwise relevant and to include values as alleged by each party and:
(a)The Respondent shall then within 14 days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect contra allegations by the Respondent and any values that are agreed (if applicable); and,
(b)Wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy; and,
(c)Upon completion of any Single expert valuation the balance sheet shall be amended to reflect determined/agreed values;
(d)The balance sheet reflecting current agreements and controversies shall be provided to the Mediator not less than 7 days prior to the conference and a final, settled version shall be filed prior to trial with the Case Outline filed by each person.
The parties shall attend mediation with an accredited Family Dispute Resolution Practitioner as agreed between the parties and to occur no later than 15 August, 2014.
The parties shall be responsible for ensuring that a copy of their documents as filed are provided to the mediator not less than 7 days prior to the mediation.
Forthwith upon a Family Dispute Resolution Practitioner being agreed or appointed then each party shall:
(a)Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;
(b)Pay one half of all fees charged by the practitioner;
(c)Attend at such times, dates and places necessary to complete mediation.
Any party seeking to retain any asset and/or to pay monies to another person shall ensure that they have made all relevant enquiries as to their borrowing capacity and so that they are able to negotiate and make a real and genuine attempt to resolve the matter at the Mediation.
Any party seeking a superannuation splitting Order is to serve on the Trustee of the affected fund within 14 days a notice of the order or range of Orders to be sought and so as to afford procedural fairness to the fund and any response received from the fund shall be provided to all other parties and filed with the Court prior to the Mediation.
Not less than 7 days prior to the mediation each lawyer for a party shall provide to their client a written statement of fees incurred to that time, expected to be incurred for the Conference, and likely to be incurred in preparation for and conduct of a trial if the matter is not resolved.
That the Applicant shall file and serve all Affidavit material to be relied on at trial by 12 September, 2014.
That the Respondent shall file and serve all Affidavit material to be relied on at trial by 17 October, 2014.
The Applicant shall file and serve any Affidavit in reply by the Applicant alone by 7 November, 2014.
The proceedings are listed for trial 21 November 2014 at 10:00am.
The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.
Any further subpoena for the production of documents shall be filed and served and so as to require production of material to the Court not less than 21 days prior to the allocated hearing dates and the party issue same shall ensure that all necessary steps are taken to have obtained leave to inspect material expeditiously and all parties shall ensure that they have inspected material and tabulated same (in the event that tender or cross examination on those documents is proposed) prior to the hearing (as no time will be made available for inspection of that material prior to the hearing commencing).
Leave is granted to file Terms of Settlement (together with proof of procedural fairness to any Trustee or person affected by the proposed Orders) and Orders will then be made in Chambers and any future dates vacated.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT PARRAMATTA

PAC 375 of 2014

MS PAYNE

Applicant

And

MR PAYNE

Respondent

REASONS FOR JUDGMENT

These are proceedings involving competing parenting applications with respect to a young child, X born (omitted) 2011. X will shortly turn three years of age.
The parties to the proceedings are X’s parents being his mother, Ms Payne, who is the applicant, and his father, Mr Payne, who is the respondent.
X is, in many ways, a very lucky little boy. He has two abundantly competent and caring parents as well as a broad range of extended family members who love him a great deal.
The fundamental issue with respect to the determination of these proceedings is an application that X reside with his mother in New South Wales, whereas his father wishes him to live in southern Victoria in (omitted).
Accordingly, if Ms Payne’s application is successful, there will be a significant distance between the parties’ homes. If the application is not successful and relief is granted as is sought by Mr Payne, Ms Payne would then be compelled to return to live in the (omitted) area with X which would, on her case, present a number of difficulties for her not the least of which would be emotional difficulties.
What is not in dispute in the proceedings is that X will live with his mother.
The case involving, as it does, an application with respect to relocation, represents grave difficulties for the Court. Not because the case is different to any other parenting case. The same legislative pathway applies. However, the difficulty with which the Court is faced is the certainty that this little boy’s happiness and his relationship with at least one, but in all probability, both of his parents will not be as good as it might be in an ideal world and certainly not as good as his parents, at the time of his conception and birth and, indeed, until the latter part of 2013, only some six months ago, would have hoped.

Evidence in the proceedings

Prior to the commencement of the proceedings, counsel for each of the parties filed a Case Outline document. The material to be relied upon by each of the parties is enumerated therein, however, for the sake of clarity and certainty, I enumerate that material herein also.
Ms Payne, for her part, relies upon the following material:
a)Her amended initiating application filed 6 May 2014;
b)An affidavit by her filed 18 December 2013;
c)A further affidavit by her sworn 2 April 2014;
d)A third affidavit sworn 2 May 2014;
e)A financial statement sworn 2 May 2014;
f)An affidavit by Ms Payne’s mother, Ms C, sworn 2 May 2014; and
g)An affidavit of Ms S filed 4 April 2014.
In Mr Payne’s case, he relies upon:
a)His response filed 8 March 2014;
b)An affidavit filed 8 March 2014;
c)A further affidavit filed 3 April 2014;
d)An affidavit filed 2 May 2014;
e)A financial statement which was filed 8 March 2014;
f)An affidavit by his father, Mr H, filed 2 May 2014.
In addition to the materials filed a number of exhibits have come into evidence comprising, in the mother’s case:
a)An email exchange between her and Mr Payne dated 20 January 2014 and marked Exhibit A1;
b)A minute of orders sought, slightly amending the relief sought by her, (although not to such a significant extent as would obviate against due process being afforded to the respondent), marked Exhibit A2; and
c)Exhibit A3, the text of a number of text messages between the parties.
In the father’s case, there are three exhibits comprising:
a)Exhibit R1, the original of a photograph otherwise annexed to his material in photocopy form;
b)Exhibit R2, the original of a birthday card also annexed to his material in a photocopy form; and
c)Exhibit R3, a letter to Caldwell Martin Cox.
Each of the parties was required for cross-examination as was Mr Payne senior and Ms C. Ms S was not required for cross-examination.

The parties’ proposals

As would be apparent from the above, the parties are substantially at odds with respect to the geographical place of residence of young X, rather than the person with whom he will primarily live, being his mother.
Ms Payne, for her part and by the minute of orders Exhibit A2, proposes that she would have sole parental responsibility for X, that X would live with her and spend periods of time with his father, in effect, each three weeks, with that time to alternate between a block period of four nights to occur with a changeover at (omitted) (approximately mid-way between the parties’ homes) and a block period of the same duration to occur by Mr Payne travelling to Sydney and staying where he desires, (although clearly Ms Payne envisages and proposes that he would stay with his sister who lives in the (omitted) area of Sydney).
Once young X commences school, Ms Payne proposes that there would then be school holiday time and one can infer therefrom that the difficulties that would arise with school term time would be significant and thus it is not proposed. Arrangements are also proposed to ensure, at least until school holiday time has commenced, that each parent has some time with X over the Christmas period.
Mr Payne, for his part and as proposed in his response, seeks an order for equal shared parental responsibility and seeks orders that Ms Payne be required to forthwith return X to live in the (omitted) area.
Thereafter, it is proposed by Mr Payne that until X turns four, a little over a year away, that time would occur for two consecutive nights per week and to include a weekend each alternate week, together with other periods and that once X has turned four that there be a more extended alternate weekend period, Thursday to Tuesday, together with a briefer period in the intervening week. Once X has commenced school, Mr Payne proposes that further and relatively equal shared care arrangements would apply.
It is to be noted that the parties have also included in their documents pleas for property adjustment relief. The parties agreed that those pleas should be addressed at a latter time and that the parenting aspect of the matter only will be dealt with at this time, for reasons that will soon be apparent.

History of proceedings

These proceedings were commenced by an application filed by Ms Payne on 30 January 2014.
The matter came before the Court on 12 March 2014 on which date the matter could not be heard on an interim basis and the proceedings were, accordingly, adjourned for a short period to 11 April 2014.

On that date, both parties appeared with counsel and wished to press their applications for interim relief. It was apparent, at that time, that the orders sought by each party were identical on an interim and final basis. The parties had also, on the previous occasion that the matter had been before the Court, attended upon a family consultant for the purpose of a Child Dispute Conference.
The Child Dispute Conference Memorandum had recommended that a Family Report “may be of assistance to the Court if the matter proceeds to Final Hearing” and had suggested that the appointment of an Independent Children’s Lawyer was required. Neither party sought to press for orders to provide for either of those resources.
On that basis and noting that the relief sought was identical on both an interim and final basis, it was considered a far more appropriate and expeditious address of all of the issues between the parties and a more effective use of Court resources for the matter to be listed on a final basis and as final hearing dates could be made available quickly to the parties, who each indicated their willingness and ability to be ready.
Accordingly, the matter was adjourned to 19 and 20 May 2014 for final hearing. On that basis the matter has, from commencement to completion, occupied less than four months.
In some respects, that is perhaps problematic, noting that the separation of the parties occurred, at the earliest, on 22 November 2013, if not on the date of 8 or 12 January 2014 or some date in between.
The Court is acutely aware of the trauma that is experienced by parents upon the termination of their adult relationships. However, what is also apparent is the trauma that is occasioned to and experienced by children as a consequence of their parent’s separation. On that basis and having regard to the issues involved, it was considered appropriate to proceed with the matter as quickly as possible and one would hope that the parties receive some benefit from an early determination of these issues.

The factual history of the matter

There is no significant controversy between the parties as to the history of the matter. There are areas of controversy, but they are far from many and they, largely, do not require authoritative determination to allow the issues at hand to be dealt with.
The father, Mr Payne, was born on (omitted) 1981 and is accordingly now aged 33 years.
Ms Payne was born on (omitted) 1984 and is now 29 years of age.
The parties met, it would seem, through Ms Payne’s father, he then being and continuing to be the employer of Mr Payne. The meeting occured in the early part of 2006. That meeting occurred when Mr Payne had travelled from Victoria, where he ordinarily resided and was employed, in Sydney for a work related event.
The parties commenced a relationship which occurred, initially, over some distance. In December 2006, Ms Payne moved to Victoria and then commenced cohabitation with Mr Payne. It is fair to describe, as Ms Payne did, that she had fallen “madly and head over heels in love” with Mr Payne, thus their relationship proceeded with some haste.
In May 2007, the parties purchased a home together in (omitted).
In June 2007, Ms Payne commenced employment in (omitted).
On (omitted) 2009, the parties were married.
On (omitted) 2011, X was born.
In August 2013, the parties separated under the one roof for a period of two to three weeks. Whilst that has been described in the material as a “separation”, a severing of the consortium vitae, it would appear that it was not necessarily intended by the parties to be final or fatal to their relationship, Ms Payne indicating other reasons for them being in separate rooms during that period which did not necessarily suggest one or other of them had formed a permanent belief that the marriage was ended or intended to bring it to an end.
On 31 August 2013, Ms Payne left her employment, although she continued to operate a business, albeit that the business does not generate, and did not generate, a significant income and is not presently generating any income.
On 22 November 2013, a somewhat calamitous event occurred in the marriage of these parties. Ms Payne came upon a number of photos and messages that Mr Payne had sent or received with one, or possibly more than one, woman. They are not before the Court and thankfully so. The parties are entitled to some degree of privacy and they would not, as to their contents, be relevant. Indeed, the sending of them and their contents, whilst one might in a context other than judicial, be pressed to engage in some moral judgment, is not relevant. What is relevant is the reaction and the consequences of their discovery.
Clearly, Ms Payne was highly distressed by that which she found. It is suggested that they were found early in the morning whilst Mr Payne was getting ready for work. After some brief discussion, as to which the parties do not entirely agree, Mr Payne left for work and during that day Ms Payne determined to separate and acted upon that determination leaving with X and driving from (omitted) to Sydney, a trip of about 10 hours. It is to be remembered that Ms Payne was, prior to meeting Mr Payne and commencing a relationship with him, living in Sydney with, or proximate to, her parents. Ms Payne’s parents live at (omitted) and Ms Payne returned to their home.
She indicated clearly in her evidence and was unshaken in cross-examination, that she had done so as a consequence of the shock of that which she had discovered, the views she formed as to her marriage and its substratum and to seek emotional and financial support from her family. One cannot be at all critical of her for taking that step. It must have been, and I accept was, highly distressing to her.
I also accept that in hindsight Mr Payne would be deeply regretful not only of the discovery of the messages but their creation and transmission.
After Ms Payne had come to Sydney with X, she returned briefly to (omitted). She travelled there with X and, in her evidence, makes clear that she was, at that point, somewhat undecided about her relationship. One could not describe it as ambivalent, as clearly Ms Payne had not taken the steps that she has lightly and is a person for whom the enduring commitment of and to her marriage has some real importance.
The parties attended a number of counselling appointments, whether together or individually, between that time and early January 2014.
Ms Payne remained in (omitted) until 17 December 2013 then returned to Sydney with X.
Upon returning to Sydney, Ms Payne consulted with solicitors whom she had consulted immediately upon separation on 22 November 2013, and then prepared her application and swore her affidavit. They were lodged with the Court prior to Christmas 2013, but were not accepted for filing as they were not accompanied by a section 60I certificate and no application had been made for exemption therefrom. Thus, they were returned to her attorneys during the Christmas period.
What one can infer from the actions which Ms Payne took upon returning to Sydney is that her view as regards the marriage, even if they had not been communicated or made clear to Mr Payne, had crystallised somewhat in her mind, although it would seem she still was open to and entertained the possibility of reconciliation, but with real doubts and concerns as to her capacity to do so in light of the distrust that had been generated by her discovery.
Mr Payne then travelled to Sydney, arriving shortly before Christmas and spending a period, it would seem, of around 12 days residing primarily at the home of Ms Payne’s parents.
During that time, there was some real controversy between the parties as to sleeping arrangements. Ms Payne and her mother, Ms C, both make clear that a room was made up to accommodate X and the father and a bed prepared for Mr Payne. However, it would seem Mr Payne did not sleep in that bed, but instead slept with Ms Payne. It is inferred in the evidence, particularly in comments which Ms Payne deposes Mr Payne made to her subsequently, that the parties engaged in a sexual relationship with each other. Mr Payne asserts that this was one of the bases upon which he believed that the marriage had been reconciled and thus he was of the belief that Ms Payne and X would return with him to (omitted) and they would resume their relationship and marriage.
During that time, the parties also spent at least one night away from the maternal grandparent’s home on a joint holiday with just themselves and X.
Following that period, Ms Payne returned to Victoria with Mr Payne and X. The parties are, again, somewhat at odds as to the exact circumstances surrounding that return. Ms Payne asserts, and Ms C corroborates, at least as regards discussion between her and Ms Payne, that her accompanying Mr Payne on that occasion arose from Mr Payne indicating that he was leaving that day and was taking X with him, whether Ms Payne came or not.
Mr Payne denies that such a threat, implied or intended, was ever made and that it was a joint and consensual decision that they would travel together and continue to work upon reconciling their relationship.
Certainly what is clear is that during the period that then followed, whilst both parties were together in (omitted) up and until 8 January, the parties did endeavour to reconcile their relationship. Counselling continued, as did discussions, as did the practice that the parties and each refer to, of writing each other letters. That is, no doubt, a means by which each has sought to communicate difficult and emotionally stressful propositions each to the other.
I have no doubt that Ms Payne seriously waivered in her previously formed intention to permanently separate from Mr Payne during that period, and in all probability, also did so over the Christmas period. However, that does not, to my mind, suggest that she had ever held out that she was intending to return to live with Mr Payne permanently in (omitted). It suggests, indeed, perhaps the moral compulsion of each of these decent people, although each might have some doubt as to the other’s decency in the context of the case, to not lightly abandon that which they had joined voluntarily, i.e. their marriage. That is perfectly understandable.
It is often said, indeed it is part of the formalities of a marriage consecrated under the Marriage Act 1961, that one should not, and does not, enter lightly into the arrangement. Thus each gave due weight and consideration to the vows that they had exchanged and the commitments they had made each to the other and, importantly, to their son, X.
These are not parents who have lightly given birth to a child. They have done it, as I had remarked during the hearing, in the “old school fashion” of marrying first and then having children. They each, at the time that they brought X into the world, had desired and intended to do so, and to do so with each other and to raise him as a married couple.
However, for whatever reason, and each party has a slightly divergent version and I need not determine which is more likely to be correct, on 8 January 2014 Ms Payne again left with X and returned to Sydney. Ms Payne indicates that this had arisen in circumstances whereby she felt that whilst Mr Payne had made real efforts for three weeks and that his commitment to those efforts was beginning to waiver. It is suggested that he had come home from work, had talked about going away on the following weekend, and at that point she determined that Mr Payne was not as genuine in his commitments as she might have hoped or desired.
Mr Payne concedes that there was some discussion along those lines, but not that it was presented as a proposal, simply something which might be considered. Mr Payne goes further to indicate that Ms Payne was returning to Sydney and with the promise that she would return to (omitted) on 12 January so that X could spend time with him.
Mr Payne became aware, certainly no later than 12 January, that this was not to be so. Certainly then, from 8 January 2014, albeit that this is a period now of only four months, the parties have lived separately and apart. Ms Payne has lived in Sydney with X and Mr Payne has lived in (omitted).
Time between Mr Payne and X has occurred, in the circumstances, relatively frequently. Certainly not as frequently as could have occurred if the parties lived in the same locality. But it is to their credit that they have been able to make arrangements work.
On 6 February 2014, the parties met at (omitted) and X then spent a four day period with his father.
Similarly, on 25 February, the parties met at (omitted) and X spent seven nights with his father. Thereafter, time has occurred on a regular basis, largely in four day blocks, with meetings at (omitted).
An offer of spending time with X by electronic means, in particular FaceTime, has been on the table since the separation of the parties.
That is not something which has been willingly embraced by Mr Payne who, with some force and merit, points out that it is somewhat difficult, given X’s age, less than three, his relatively easy distraction and the fact that it does not make up for face to face time. Indeed, clearly many things that can occur face to face cannot happen on FaceTime, such as holding, touching or kissing the child. All important means of being able to convey and communicate love and affection for him. However, it is a means that is available and has been offered.
I am not critical of Mr Payne for not having taken up those offers with the regularity that might be offered to him. However it is a means, whether the parties are living in the same locality, or some significant distance apart, which would have some real utility into the future, particularly X being of an age whereby technology will be, in all probability, circumjacent to his existence and he will be far more competent then either of his parents at using it. Thus, the parties’ evidence is presented.
To the extent that the parties are in issue regarding some matters, they are, as I have indicated, far from significant issues or disputes.
One issue which arises in the evidence and as to which Mr Payne was cross-examined at some length, relates to the suggestion that he has been domineering and controlling throughout the relationship, particularly with respect to finances. Mr Payne denies that.
What is clear from some of the communication that has occurred between the parties, and particularly that which is communicated in exhibit A3, the record of text messages, is an ability to focus upon small, irrelevant matters, or at least, irrelevant in the context of X’s long-term wellbeing, and to be somewhat dogmatic, if not “tit for tat”, with respect to those matters on the part of Mr Payne.
Exhibit A3 deals with a number of text messages wherein the parties have sought to negotiate or, on Ms Payne’s evidence, confirm arrangements for a number of items to be delivered up to Ms Payne, being primarily items of use or interest to young X including, importantly and significantly, his pram, a rather expensive pram at that. Ms Payne suggests that there had been an agreement that the pram would be returned to her so that she could use it with X, he living with her predominantly, and that the pram would pass between the parties at least when they had exchanges at (omitted), so that each might use it.
A number of other items were also sought including, somewhat touchingly, a toy giraffe which apparently is X’s favourite toy and which brings him some real comfort.
The text messages commence with the purported reaffirmation of that agreement and conclude, in Ms Payne’s plea “It's X’s pram and he needs it”. What passes between the parties in the meantime is something far from helpful to a resolution of that issue, during which Mr Payne, it seems misleadingly, suggests that the pram is not in his care but with his father. His father gave evidence that it is not. I have no reason to doubt Mr Payne senior’s evidence in that regard. Indeed, I have no reason to doubt any of Mr Payne senior’s evidence and I will touch upon that shortly.
What passes also in the messages is what I have referred to as, perhaps a “tit for tat exchange” whereby Mr Payne suggests that Ms Payne has previously changed her mind on agreements, and accordingly he is now entitled to and has done the same.
Mr Payne was cross-examined in relation to the pram, on its face, a matter of no great utility to X’s well-being. But Ms Payne’s evidence suggested a somewhat rigid and dogmatic approach towards it, focussed not upon X’s best interests or the use by him of the pram, it being of little, if any, use to either of the parents unless X is in their care.
I am loathe to make any findings of credit in relation to the parties and I am satisfied that I need not do so especially with respect to this issue. To the extent that I am critical of Mr Payne’s behaviour as regards the pram, it is far from the most significant issue in these proceedings. It is also to be viewed in the context of these parties, very recently separated in traumatic circumstances whereby, as I had raised with Mr Payne at the conclusion of submissions, I have no doubt Mr Payne is acutely aware of the mistake he has made as regards his marriage and the impact that this has had upon Ms Payne’s ability or desire to trust or interact with him warmly.
That being said, however, Ms Payne was very clear, touchingly so in her evidence, that having fallen deeply in love with Mr Payne, that she still loves him but simply cannot trust him. She does not seek to wage a vendetta and I am satisfied that her motives in putting the position and proposals that she does before this Court are, accepting the terminology maybe somewhat inaccurate, genuine and pure. She is addressing matters of concern to her at a stressful time as though the termination of an adult marriage is not stressful enough for both parties.
The evidential issues between the parties are so few, that I am not satisfied credit need come into it.
The one potential exception to that is the vexed issue that arises between the parties as to what should be made of the fact that Ms Payne has relocated the child without any order of the Court and against the clear opposition of Mr Payne. In that regard, it is submitted on behalf of Mr Payne that “it is plain as a pikestaff”, that the current situation is going to have a very serious impact on X, both at the present time and in the near future, whereby he is separated from his father as a result of the tyranny of distance and a decision made by his mother to “put as much distance between herself and her estranged husband as possible, when there is no compelling reason that this should have occurred or should continue”.
With respect to that position, I do not raise any criticism with the submission. However, I am not satisfied that Ms Payne’s motive in returning to Sydney is other than, as she has described, emotional and financial support from her parents and in circumstances whereby she was and is highly distressed. I am not satisfied that she has made the decision that is attributed to her, to put distance between herself and her estranged husband, for the sake of it or for any reason other than her emotional and financial support. It is certainly clear that the parties have some financial resources available to them and financial support might well have been provided by Ms Payne utilising self-help to sell, for instance, some portion of a significant share portfolio and derive funds thereby.
However, importantly and whether one focuses upon that issue or not, the emotional support that Ms Payne has sought is not, and I am satisfied would not be, available to her in (omitted).
I am loathe to canvass the trauma that has led to the separation of these parties. It is personal to them and it need not be fodder for public viewing. However, it involves what might be, in older terminology and with some reality with the context of marriage, viewed, and certainly as viewed and perceived by Ms Payne, whether through intent or action as “adulterous”. Ms Payne thus has received something of a shock.

In those circumstances, she would require some emotional support which would be better provided, perhaps through family supports, than privately paid for counselling services.
It is also to be noted that Mr Payne has a long-standing connection with (omitted) and a broad and extensive network of friendships. Ms Payne has certainly developed friendships, perhaps not of the same depth or breadth, but some. However, the majority of friendships which Ms Payne has enjoyed are with mutual friends and acquaintances of Mr Payne. Accordingly, in those circumstances, it is difficult to comprehend how she could have perceived, let alone have received, objective and uncritical support.
One is also conscious of that related by the High Court and the Full Court in the context of relocation cases, that the person wishing to relocate a child’s residence need not demonstrate compelling reasons, although reasons may have some relevance to the determination. I am satisfied in that regard that I should not accept the submission that Ms Payne has been motivated by a desire to put distance between herself and her husband, but simply that she has returned to the warm and welcoming bosom of her family as that which was available to her.
Further weight is added to Ms Payne’s position noting that Ms Payne had, not any significant period prior to separation, left her primary employment and had, upon leaving (omitted) in November 2013, handed over, as it were, the assets of her private business being the customer base. Accordingly, she would be without that financial support.
In (omitted), Mr and Ms Payne also have significant assistance, which is of some real relevance to these proceedings, with child minding and care for X provided by Mr Payne senior. Mr Payne senior lives no significant distance from (omitted) and clearly he has had a substantial and active involvement in X’s life since early in his life.
Whilst referring to Mr Payne’s services as “child minding”, I do not intend to be at all pejorative. It is well and truly beyond that. Mr Payne senior, as indeed Mr Payne junior and Ms Payne, have a deep and abiding love and affection for this little boy and tragically the loss which has been suffered by Mr Payne through the separation of these parties has also been felt, in a very real sense, by Mr Payne senior. He has been involved in weekly time with this little boy, including having him sleep over, not frequently, but regularly at his home. That special bond between Mr Payne, as a grandparent, and this little boy thus has been disrupted also.
Ms Payne’s evidence is that since X’s birth, she has travelled with X, each six to eight weeks, to Sydney so that she can spend time with her parents. Mr Payne puts the frequency of those visits in issue. He has also proposed that Ms Payne, if she were required to return with X to (omitted), would be in a position to continue such travel and that he would be prepared to assist towards at least Ms Payne’s airfare. Those relationships with maternal extended family members clearly have also developed, although perhaps not with the same depth and regularity as the relationship between this little boy and his paternal grandfather.
They are all, however, important relationships which the Court must, through the orders that it is asked to make and will make, address.
As the Full Court has been clear in Burton & Churchin and Anor [2013] FamCAFC 180, the applicability of section 60CC(2)(a), an assessment of the desirability of a meaningful relationship between X and each of his parents, is at that point, as a primary consideration, confined to parents (whom the Full Court has indicated, in their view, clearly and obviously from parliament’s intent, includes only biological and adoptive parents). Whether that is so or not, I need not concern myself.
However, the other relationships are important, certainly as additional considerations under section 60CC(3)(b)(ii) and thus I must direct some attention towards them.
The legislative pathway and case law to which I will turn shortly, is relatively clear. I make that observation on the basis, if nothing else, that the legislative pathway provides me with some real comfort. It is the “Alamo” to which I can retreat in dealing with what are clearly difficult circumstances as regards address, for these grieving parents and their child affected thereby, of future care arrangements.

Relocation

The difficulty of relocation cases does not arise from the application of different legislative provisions, but purely the stakes that are at play. As was observed by Kirby J in U & U [2002] FLC 93-112:
…cases of fractured family units having connected with two or more national jurisdictions are much more common today than in earlier times when international travel was less common, wives less willing to challenge husband’s rights and legal aid less available for such cases even than it is now…
These parties have had to fund expedited and costly litigation in a very short space of time after their separation from each other.
The ability of the parties to move distances apart is not so much the issue here as the efficacy and utility of it and the basis of benefit or detriment that flows therefrom.
I take some comfort from the observation of Kirby J in the same authority, U & U [2002], that relocation cases involve “hard decisions which need to be made”.
In the same vain Hayne J observed in U & U [2002]:
What have come to be known as "relocation cases" present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parents lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child's relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child's wishes) –although clearly X is not at that age – …all bear upon the question to be considered by the Family Court [although, in this case, the Federal Circuit Court of Australia]
It was also opined by Hayne J in U & U [2002] as follows:
It is now recognised as self-evidently true that, apart from some cases of abusive relationships –
of which I am satisfied this is not one:
…children benefit from the development of good relationships with both their parents
and I pause to observe that indeed the Act now enshrines that both as an object and a primary consideration. Hayne J continues:
The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Part VII of the Act.
They now are expressly so:
If effect is to be given to those principles, it must not be assumed that one parent (the father) –
in that case:
…cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
In slightly, and perhaps less harsh terms, Kirby J had observed that “…the legitimate interests of parents are relevant, and remain relevant, notwithstanding the paramounts in principle established by [section 60CA]”. They are simply subservient to the child’s best interests.
As regards the relevant case law in relation to relocation, I am conscious that I have already previously addressed that in a decision of Beaumond & Hardiman [2013] FCCA 1173 and accordingly and to that extent I incorporate paragraphs 166 to 181 thereof to avoid repetition of same during the delivery of these oral reasons:
Case Law regarding relocation
166. The specific matters which relate to a relocation case, which in any event are otherwise parenting proceedings to be dealt with under Part VII, are addressed at some length by Kirby J in his decision in AMS & AIF. Specifically, his Honour commencing at paragraph 136 set out nine specific factors which one might consider, I incorporate paragraphs 136 to 149 of that decision herein and as follows:
136. At least until the second half of the eighteenth century, a child born to unmarried parents, called "illegitimate", was regarded by the common law as filius nullius. Consequently such a child was under the legal guardianship of nobody. The applicable law was so strict that even until the end of the nineteenth century an illegitimate child was not regarded as being in the custody of anyone, even of its mother. However, in Barnardo v McHugh, the House of Lords recognised the mother's legal right to the custody of her illegitimate child. The change of direction in the law was the result of an inference drawn from the Poor Law Acts imposing statutory duties on the mother in relation to the maintenance of such a child.
137. Before and after the enactment of FLA 1975 and FCA 1975, developments occurred in Australia to occasion further quite radical changes to the applicable law. The first was an alteration in community attitudes to the status of illegitimacy and the growth of the number of relationships between couples outside marriage to whom children are born. These developments led to many legislative changes. Relevant to the present appeals was the reference to the Federal Parliament by the Parliaments of all States except Western Australia of their legislative powers in respect of children. This led, in turn, to the amendment of FLA 1975 to cover all children in those affected jurisdictions: those born to married parents (nuptial) and those born to parents who were not married (ex-nuptial).
138. The second development arose out of the significant increase in the number of divorces granted annually affecting large numbers of children. This fact occasioned inquiries aimed at reducing the "win/lose mentality in which parents may appear to be pitted against each other to the detriment of the children". Reports by the Family Law Council and by a Joint Select Committee of the Parliament proposed changes to FLA 1975, addressed to applicable nomenclature, principles and procedures. Many of these proposals were adopted by the Family Law Reform Act 1995 (Cth). Those reforms were not immediately copied in the Western Australian law. However, many of them were introduced into the law of that State by FCA 1997.
139. The third development of relevance arises from the growing influence in recent years, including in this area of the law, of international law to which reference will later be made.
140. Relocation cases have long presented special problems for judicial decisions concerning the custody of children. But a fourth development has added to the number, variety and urgency of decisions concerning the relocation of parents having custody of a child. Two particular features of Australian society may be noted. The first is that, overwhelmingly, women constitute the residence parent to whom, in the old nomenclature, "custody" is granted. Of single parent families, the mother is reportedly the residence parent in approximately 84% of cases. Accordingly, in practical terms, court orders restraining movement of a custodial (or residence) parent ordinarily exert inhibitions on the freedom of movement of women, not men. Another feature of the Australian scene, not necessarily reflected to the same degree in other jurisdictions, is the very large proportion of the population born overseas, with family links to which a party to a marriage or relationship which has broken down may return with their child.
Relocation of a child's residence - general principles
141. This Court comes to the consideration of the arguments in these appeals with the benefit of at least thirty years of consideration of like problems by appellate courts in Australia and other common law jurisdictions. I derive the following general propositions from the authorities.
142. First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a "careful and delicate analysis", which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach.
143. Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child's place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the "welfare" (or "best interests") of the child should be the paramount consideration. It may provide a list of considerations or "principles" to be applied in the exercise of the court's powers. However, the "paramount" consideration is not the same as the "sole" or "only" consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
144. Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
145. Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
146. Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women's equality or the "feminisation of poverty" resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
147. Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.
148. Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child's access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
149. Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court's discretion
167. The above principles were also discussed by his Honour in some detail in U & U. I have also been referred by Counsel for Ms Beaumond to an excellent discussion of the relevant principles (not only as espoused within U & U but Morgan & Miles (2007) FLC 93-343 and Palmer & Hammer (No 2) [2011] FamCAFC 196, Taylor & Barker (2007) 37 FAM LR 461 and MRR v GR (2010) 240 CLR 461 and various other authorities) by the decision of the Full Court in Sayer & Radcliffe and Anor [2012] FamCAFC 209. I thus incorporate herein from that discussion portions thereof which more than abundantly sets out those principles, being paragraphs 46 to 51 thereof together with that incorporated and expressed with approval within that judgement from Starr & Duggan [2009] FamCAFC 115 and under the heading: “Approach to Applications involving a Relocation of the Child” (paragraphs 33 to 39 thereof):
33. The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
34. The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.
35. In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
36. The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
37. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
38. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
Relevant Principles
168. While it is apparent that the mother’s primary complaint in the appeal is the Federal Magistrate’s denial of permission to relocate to South East Queensland, it is important to recall that the application before her Honour was that of the father for parenting orders. The consideration of relocation arose later, in the mother’s response to the father’s application, as an order sought by her, and then more urgently when the mother had in fact moved to South East Queensland with the children.
169. It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan & Miles (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).
170. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan & Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
171. The provisions of the Act which form that legislative pathway have been reproduced at length by this Court many times (Taylor v Barker (2007) 37 Fam LR 461, Morgan & Miles (supra), Adams & Randall (2011) FLC 93-482). It is sufficient for current purposes to identify and summarise those sections contained in Part VII of the Act which govern decisions about children, and consider statements of the High Court and of this Court which guide their application in the context of relocation cases:
·   Section 60B – Objects of Part and principles underlying it
·   Section 60CA – Child’s best interests paramount consideration in making a parenting order
·   Section 60CC – How a court determines what is in a child’s best interests
·   Considerations relevant to relocation include:
o   Primary considerations: meaningful relationship with both parents
·   Additional considerations:
o   Nature of child’s relationship with parents and other persons
o   Extent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate
o   Likely effect of changes in child’s circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living
o   Practical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child’s right to maintain personal relations with both parents on a regular basis
o   Capacity of each parent and any other person to provide for the needs of the child
·   Section 61DA – Presumption of equal shared parental responsibility when making parenting orders
·   Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable)
·   Subsection 65DAA (5) – Factors the Court must have regard to in determining reasonable practicability:
o   How far apart parents live
o   Parents’ current and future capacity to implement an arrangement for equal or substantial and significant time
o   Parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements
o   Impact arrangements would have on the child
o   Such other matters the Court considers relevant.
172. The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.
173. The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR [2010] HCA 4 (3 March 2010), an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said:
6. Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
7. Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. […] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
8. Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”(Emphasis added.)
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
(c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”,“[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Approach to Applications Involving Relocation of A Child
174. The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramouncy principle” found in s.60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
175. The interplay between the paramouncy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.
176. In McCall & Clarke the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
177. The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s.60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s.65DAA, especially s.65DAA(5).
178. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
179. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
a) first make findings concerning the relevant s 60CC factors;
b) then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
c) then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s. 65DAA(5) – which may be done by referring back to the earlier s. 60CC findings.
180. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
181. What is made clear by that discussion and the cases addressed therein is that the legislative pathway must be followed and with a specific focus upon considering each of the proposals that arise.

Maturity, sex, lifestyle and background

X is a very little boy, not yet three. He will, in a few years’ time, have little, if any, recollection of the lived experience of having being with his parents together. That is fundamentally sad for X. Indeed, I am satisfied his parents accept that it is so, and hence at the outset of these reasons, I have made clear that the difficulty in this case is not presented by complex facts or the application of the legislative pathway to them, but by the acceptance, as a matter of simple reality, that X’s life will now, and in the future, never be as good as it might have been if circumstances were different. But, if the court had the capacity to undo events, matters would never come before the court.
There are no other matters relevant to this consideration.

Aboriginal or Torres Strait Islander identity

Neither parent identifies as Aboriginal or Torres Strait Island. X is not so identified.

The attitude to the child and the responsibilities of parenthood demonstrated by each parent

Absent the minor criticism that arises from the sarcasm and chicanery of the text message exchange in exhibit A3, each of these parents exhibits and puts into practice an abundantly appropriate child focussed attitude.

Family violence

Whilst portions of the evidence, particularly the suggestion that Mr Payne has been controlling in the marriage, might suggest that issues of family violence in the broad scope of the section 4AB definition arise, I am not satisfied that it is so and no finding in that regard is or could be made.

Family violence orders

This is one of the rare cases before this Court, particularly at final hearing, where there is no family violence order, nor likely to be one.

Whether it is preferable to make orders that would least likely lead to the institution of future proceedings

I am satisfied that if orders were made as sought by Mr Payne, that difficulties would be far more abundant in both the dynamic of the parenting relationship and in X’s life than if orders are made as sought by Ms Payne. That is particularly so in that if Ms Payne was so aggrieved, so absent emotional support, so isolated and estranged from her family, so unsupported in a real and practical sense, it would be almost inevitable that the communication which is presently remarkably and surprisingly good between these parties, would deteriorate and that would, inevitably, lead to further difficulties and proceedings, let alone disadvantage to X.
For those reasons I am satisfied that the orders proposed by Ms Payne will best meet X’s best interests.
That is not to suggest that there are not arrangements which would not better meet his interests, but they are not arrangement that this Court can order. I cannot make the parties live together and I certainly cannot breach the geographical distance between them.
I am not satisfied that it would be in X’s best interests to compel his, and thus through him, his mother’s return to (omitted) and thus it is less preferable than the imperfect proposal Ms Payne raises.

Conclusion

For those reasons, I propose to make orders substantially in accordance with exhibit A2 being the Minute of Orders proposed by Ms Payne. They will not be identical, however, but to the extent that they are incorporated in that minute I propose to require Ms Payne’s representatives to forward an email word version copy of the document to minimise the typing my staff are required to undertake. I will read in full the orders to be made, but they are largely by reference to the minute exhibit A2 and with slight increases in the periods.

I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date: 10 October 2014

[2014] FCCA 2319

22 May 2014

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