Percy and Heffernan

[2014] FCCA 1065

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERCY & HEFFERNAN [2014] FCCA 1065

Catchwords:
FAMILY LAW – Parenting matters – Mother secretly left Australia with young child depriving Father of contact with child for almost one year – Mother now wants to relocate to far north coast of New South Wales from central west of that State – child’s relationship with Father still at early stage of development – Mother’s proposal to relocate very unformed and uninformed– best interests considerations to ensure child’s meaningful relationship with Father continues – Mother prevented from relocating to far north coast of NSW.

Legislation:

Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA

Cales v Cales (2010) 251 FLR 454; (2011) 44 Fam LR 376
Collu & Rinaldo [2010] FamCAFC 53
McCall v Clark (2009) 41 Fam LR 483
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Morgan v Miles (2008) 38 Fam LR 275
MRR v GR (2010) 240 CLR 461
Sayer v Radcliffe (2013) 48 Fam LR 298
Shaeffer v Jacobs (2011) FLC ¶93-468
Sigley v Evor (2011) 44 Fam LR 439

Applicant: MS PERCY

Respondent: MS HEFFERNAN

File Number: CAC 1388 of 2010

Judgment of: Judge Neville

Hearing dates: 28 & 29 November 2013

Date of Last Submission: 29 November 2013

Delivered at: Wagga Wagga

Delivered on: 28 May 2014

REPRESENTATION

Counsel for the Applicant: Ms J Godtschalk

Solicitors for the Applicant: Walsh & Blair, Wagga Wagga

Counsel for the Respondent: Mr R Harper

Solicitors for the Respondent: Farrell Lusher, Wagga Wagga

ORDERS

1. The Mother is not permitted to move to the far north coast of New South Wales.

2. The Mother is permitted to move to (omitted) with the child.

3. Unless otherwise agreed in writing between the parties (or by Court order), the Mother is restrained from moving with the child outside a radius of 50 kilometres of the (omitted) area, save that, upon giving the Father written notice of no less than 21 days, the Mother is permitted to move, with the child, to an area that is within a radius of 50 kilometres of (omitted).

4. The parties have equal shared parental responsibility for X born (omitted) 2009 (the Child).

5. The Child live with the Mother.

6. The Child spend time with and communicate with the Father as follows:

   (a)     From the date of these Orders until the end of second term in 2014:

   (i)each Tuesday from 4.00pm to 7.00pm;

   (ii)each alternate weekend from 4.00pm Friday to 5.00pm Sunday;

   (iii)by telephone each Monday and Thursday at any time prior to 7.15pm and at any other time upon the Child’s request, with the father to facilitate the call, the mother not interrupt the call and provide the Child with privacy for the duration of the call; during term 1 and term 2 holidays the father’s normal weekend be extended by 2 days until 4.00pm Tuesday (on the first or second weekend as is applicable);

   (iv)from 4.00pm on 24 December 2013 until 5.00pm on 28 December 2013 (noting that the father will not spend time on his normal weekend);

   (v)from 4.00pm on 10 January 2014 until 5.00pm on 14 January 2014 (i.e. extend normal weekend by 2 days);

   (vi)at such other times as may be agreed;

   (b)     From the commencement of term 3 in 2014:

   (i)each Tuesday from 4.00pm to 7.00pm;

   (ii)each alternate weekend from 4.00pm Friday to the commencement of school on Monday;

   (iii)by telephone each Monday and Thursday at any time prior to 7.15pm and at any other time upon the Child’s request, with the father to facilitate the call, the mother not interrupt the call and provide the Child with privacy for the duration of the call;

   (iv)during term 3 holidays the father’s normal weekend be extended by 4 days until 4.00pm Thursday (on the first or second weekend as is applicable);

   (v)From 9.00am to 5.00pm on Father’s Day if the Child is not otherwise spending time with the Father pursuant to these Orders;

   (vi)during Christmas school holidays each normal weekend will be extended by 3 days;

   (vii)at such other times as may be agreed;

   (c)     From the commencement of school in 2015:

   (i)each Tuesday from 4.00pm to 7.00pm (excluding school holidays);

   (ii)each alternate weekend from 4.00pm Friday to the commencement of school on Monday;

   (iii)by telephone each Monday and Thursday at any time prior to 7.15pm and at any other time upon the Child’s request, with the father to facilitate the call, the mother not interrupt the call and provide the Child with privacy for the duration of the call;

   (iv)for one half of the term school holidays commencing on the Friday of the father’s normal weekend the following Saturday in week 1 and Sunday in week 2;

   (v)From 9.00am to 5.00pm on Father’s Day if the Child is not otherwise spending time with the Father pursuant to these Orders;

   (vi)from 4.00pm on 24 December 2015 until 5.00pm on 28 December 2015 and each alternate year thereafter;

   (vii)for one half of the school holidays as is agreed between the parties or failing agreement the father’s normal weekend to be extended to 7 days;

   (viii)at such other times as may be agreed.

7. Changeover occur by the Mother delivering the Child to the Father’s home at the commencement of the Child’s time with the Father and the Father returning the Child to the Mother’s home at the conclusion of that time.

8. In the event that the Child suffers any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the Child has been taken.

9. The Father cause to be fitted in his vehicle a child restraint that complies with the Australian Standards and NSW law.

10. The Mother and the Father be restrained from removing the Child from the Commonwealth of Australia without the express written consent of the other parent.

11. Each parent authorise any pre-school or day care that the Child attends to inform the other parent of any information they require, copies of any progress report, examples of work, newsletters, notification of pre-school activities and inform the other parent of any emergency, remedial or correctional treatment required by the Child as soon as is practicable and that both parents be at liberty to attend any pre-school or day care event that parents are usually invited to.

12. Each parent authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the Child shall attend from time to time to provide to the other parent any information regarding the Child.

13. If the Child falls ill such that one of the parents takes the Child to the doctor, that parent shall notify the other parent of the doctor’s contact details and medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan to follow, any directions from the doctor for the Child. Each parent is then restrained from seeking alternate medical treatment unless the Child’s condition appears to deteriorate.

14. The Mother will discuss with the Father any extracurricular activities that it is proposed that the Child participate in and, if the Father consents to the Child participating in that extracurricular activity, the Father shall ensure that the Child attends that activity.

15. Each parent shall advise the other parent of any change of any landline or mobile telephone numbers within twenty-four (24) hours of that change.

16. Each parent shall notify the other parent of any change of address within forty-eight (48) hours.

17. Neither parent, their agents and servants shall denigrate the other parent to the Child, in front of the Child or within the Child’s hearing.

18. The Mother be restrained from causing the Child to be registered or referred to by any surname other than ‘Percy’.

19. The Mother and the Father be restrained from discussing the parenting proceedings with the Child or otherwise of involving the Child in any parenting dispute.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WAGGA WAGGA

CAC 1388 of 2010

MS PERCY

Applicant

And

MS HEFFERNAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting matter in relation to 5 year old X.  Her Mother wishes to relocate from the (omitted) area to (omitted),[1] which is a suburb of (omitted) on the far north coast of New South Wales.  X's Father opposes the Mother relocating such a long distance from the child’s current residence.  He does not oppose the Mother moving to (omitted), which would still allow his somewhat fledgling relationship with his daughter to continue to grow.

   [1] The Mother currently lives in (omitted), which is approximately 15 kms from (omitted).

2. For the reasons that follow, the orders sought by the Father should be made.  In my view, they are in X’s best interests.  It follows that the orders sought by the Mother are not, in my view, in the child’s best interests.  In particular, the Mother should not be permitted to relocate with the child to (omitted); she may move with the child to (omitted).

3. After setting out the orders sought by each of the parties, these reasons consider the evidence of each of the parties, and the evidence of the Family Consultant (Ms M).  The reasons conclude with a consideration of the evidence in the light of the legislative pathway.

Orders Sought

1. It might be observed here that, although the Mother initially sought an order for sole parental responsibility, in the course of the trial her Counsel confirmed that she would consent to an order for equal shared parental responsibility.[2]

   [2] See T 60 (29^th November 2013).

Orders Sought by the Applicant Father

1.That the parties have equal shared parental responsibility for X born (omitted) 2009 (the Child).

2.That the Child live with the Mother.

3.That the Mother be restrained from relocating the Child’s residence outside of 50km from the (omitted) post office except for the purposes of permanently relocating to (omitted).

4.That the Child spend time with and communicate with the Father as follows:-

a)From the date of these Orders until the end of second term in 2014:

i)each Tuesday from 4.00pm to 7.00pm;

ii)each alternate weekend from 4.00pm Friday to 5.00pm Sunday;

iii)by telephone each Monday and Thursday at any time prior to 7.15pm and at any other time upon the Child’s request, with the father to facilitate the call, the mother not interrupt the call and provide the Child with privacy for the duration of the call;

b)during term 1 and term 2 holidays the father’s normal weekend be extended by 2 days until 4.00pm Tuesday (on the first or second weekend as is applicable);

i)from 4.00pm on 24 December 2013 until 5.00pm on 28 December 2013 (noting that the father will not spend time on his normal weekend);

ii)from 4.00pm on 10 January 2014 until 5.00pm on 14 January 2014 (i.e. extend normal weekend by 2 days);

iii)at such other times as may be agreed;

c)From the commencement of term 3 in 2014:

i)each Tuesday from 4.00pm to 7.00pm;

ii)each alternate weekend from 4.00pm Friday to the commencement of school on Monday;

iii)by telephone each Monday and Thursday at any time prior to 7.15pm and at any other time upon the Child’s request, with the father to facilitate the call, the mother not interrupt the call and provide the Child with privacy for the duration of the call;

iv)during term 3 holidays the father’s normal weekend be extended by 4 days until 4.00pm Thursday (on the first or second weekend as is applicable);

v)From 9.00am to 5.00pm on Father’s Day if the Child is not otherwise spending time with the Father pursuant to these Orders;

vi)during Christmas school holidays each normal weekend will be extended by 3 days;

vii)at such other times as may be agreed;

d)From the commencement of school in 2015:

i)each Tuesday from 4.00pm to 7.00pm (excluding school holidays);

ii)each alternate weekend from 4.00pm Friday to the commencement of school on Monday;

iii)by telephone each Monday and Thursday at any time prior to 7.15pm and at any other time upon the Child’s request, with the father to facilitate the call, the mother not interrupt the call and provide the Child with privacy for the duration of the call;

iv)for one half of the term school holidays commencing on the Friday of the father’s normal weekend the following Saturday in week 1 and Sunday in week 2;

v)From 9.00am to 5.00pm on Father’s Day if the Child is not otherwise spending time with the Father pursuant to these Orders;

vi)from 4.00pm on 24 December 2015 until 5.00pm on 28 December 2015 and each alternate year thereafter;

vii)for one half of the school holidays as is agreed between the parties or failing agreement the father’s normal weekend to be extended to 7 days;

viii)at such other times as may be agreed.

5.That changeover occur by the Mother delivering the Child to the Father’s home at the commencement of the Child’s time with the Father and the Father returning the Child to the Mother’s home at the conclusion of that time.

6.That, in the event that the Child suffers any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the Child has been taken.

7.That the Father cause to be fitted in his vehicle a child restraint that complies with the Australian Standards and NSW law.

8.That the Mother and the Father be restrained from removing the Child from the Commonwealth of Australia without the express written consent of the other parent.

9.That each parent authorise any pre-school or day care that the Child attends to inform the other parent of any information they require, copies of any progress report, examples of work, newsletters, notification of pre-school activities and inform the other parent of any emergency, remedial or correctional treatment required by the Child as soon as is practicable and that both parents be at liberty to attend any pre-school or day care event that parents are usually invited to.

10.That each parent authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the Child shall attend from time to time to provide to the other parent any information regarding the Child.

11.If the Child falls ill such that one of the parents takes the Child to the doctor, that parent shall notify the other parent of the doctor’s contact details and medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan to follow, any directions from the doctor for the Child. Each parent is then restrained from seeking alternate medical treatment unless the Child’s condition appears to deteriorate.

12.That the Mother will discuss with the Father any extracurricular activities that it is proposed that the Child participate in and, if the Father consents to the Child participating in that extracurricular activity, the Father shall ensure that the Child attends that activity.

13.That each parent shall advise the other parent of any change of any landline or mobile telephone numbers within twenty-four (24) hours of that change.

14.Each parent shall notify the other parent of any change of address within forty-eight (48) hours.

15.That neither parent, their agents and servants shall denigrate the other parent to the Child, in front of the Child or within the Child’s hearing.

16.That the Mother be restrained from causing the Child to be registered or referred to by any surname other than ‘Percy’.

17.That the Mother and the Father be restrained from discussing the parenting proceedings with the Child or otherwise of involving the Child in any parenting dispute.

Orders Sought by the Respondent Mother

1.That the mother have sole parental responsibility for the child X born (omitted) 2009.

2.That the child live with the mother.

3.That the mother otherwise be permitted to relocate with the child to (omitted) area in North NSW. 

4.That upon the mother relocating with the child to Northern New South Wales, the father spend time and communicate with the child as follows:-

5.for four (4) days over the Easter period of 2014 to coincide with school holidays;

6.for one (1) week of the winter and spring 2014 New South Wales school holidays at times to be agreed, but in absence of agreement from the first Sunday to the middle Sunday of such holidays;

7.for the summer school holidays of 2014 for one (1) week at the commencement of the Christmas school holidays and one (1) week at the conclusion of the school holidays, at times to be agreed, but in absence of agreement from the first Sunday to the Sunday thereafter, and from Sunday to Sunday in the last week of the school holidays;

8.after the expiration of time pursuant to Order 6 (a) to (c) thereafter for half of all school holidays at times to be agreed, but in absence of agreement for the second half in 2015 and each alternate year thereafter, and for the first half of such school holidays in 2016 and each alternate year thereafter.

9.That for the purposes of time pursuant to Order 5, the father will be responsible for collecting the child or making transport arrangements for the child at the commencement of time, and the mother will be responsible for collecting the child or making transport arrangements for the child at the conclusion of time with the father.

10.That each parent shall authorise any day care or school that the child shall attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child as soon as is practicable.

11.Each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the child shall attend from time to time to provide to the other parent any information regarding the child.

12.If the child falls ill such that one of the parents take the child to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended.  Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the child. Each parent is then restrained from seeking alternate medical treatment unless the child’s condition appears to deteriorate.

13.That in the event that the child suffers any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child has been taken.

14.That each parent shall advise the other parent of any change of any landline or mobile telephone numbers within twenty four (24) hours of that change.

15.Each parent shall notify the other parent of any change of address with seven (7) days.

16.That neither parent, their agents and servants shall denigrate the other parent to the child, in front of the child or within the child’s hearing.

17.That neither party shall denigrate the other nor their family in the presence of the child.

Outline of Evidence

1. At the outset, I should be taken to prefer the evidence of the Father to that of the Mother where-ever there is any relevant inconsistency.  While I do not understand the Mother to have embellished her evidence, more particularly, the Father impressed me in the diligent, under-stated way that he gave his evidence, as well as his persistent efforts to pursue the relationship with his young daughter.  On the other hand, the Mother’s evidence was regularly lacking in relevant detail and particulars, and as made plain later in these reasons, some of her actions have seriously impeded the child’s relationship with her Father.  The Mother’s actions do not give me any confidence that, if she was permitted to relocate with the child, X’s relationship with her Father would be promoted let alone fostered. 

2. Further, while the Mother is not required to provide compelling reasons why she seeks to relocate with the child, her patent lack of detail about the proposed new residential locality for herself and X, her lack of inquiry regarding her employment prospects, and much more besides noted later in these reasons, indicated a very significant lack of attention the Court might properly expect from a parent who seeks to move such a large distance away from the other parent.  In my view, the evidence (or rather the lack of it) clearly showed the Mother’s proposed move was severely lacking in foresight and relevant detail; her evidence was concerningly unformed and uninformed.  While not completely on a “wing and a prayer”, the proposed relocation was sufficiently nebulous and lacking in basic attention to detail – other than location – as to warrant the Court to prevent such a distant move as not being in the child’s best interests.

The Father’s Evidence

1. The Father is a 42 year old man who works as a (omitted) at (omitted) in (omitted).  He is employed full time.  He lives in the former matrimonial home in (omitted).

2. He commenced a relationship with the Mother in approximately 2006; they lived together for a short time but separated in November 2006.  They later reconciled and married in October 2007.  They separated in approximately October 2011, when X was just under three years old.  They were divorced in June 2013. 

3. After separation, the Mother and X moved to live with her parents at (omitted).  The Father did not spend time with his daughter between October 2011 and February 2013.

4. Further, by way of general background, in March 2012 the Mother took the child to (country omitted) without the Father’s knowledge or consent.  The Father did not learn of this eventuality until late April 2012.  In May of that year, the Father retained legal representation.  The Mother finally wrote to confirm that she would be returning from (country omitted) in late August 2012, but later changed her mind and did not return with the child until late January 2013.  In fact, the Mother did not return until February 2013. 

5. In the latter part of the Mother’s time in (country omitted) with the child, and in the light of Court orders, the Father was able to begin speaking with X which occurred on average once per fortnight.  The Mother called on a ‘reverse charges’ basis.

6. In the course of the Father’s cross examination, the following matters were traversed with him. 

7. First, Mr Percy said that he was very happy to receive information, if not detailed instruction, from the Mother regarding any dietary matters relating to X.  Further, he said he would in fact like to know more information.  He was content for that information to be conveyed via a communication book.

8. Mr Percy confirmed that he continues to like talking to the Mother but that some days, he said, she does not talk to him.  Indeed he confirmed that he still loved the Mother.[3] 

   [3] T13 and T32.  Unless otherwise indicated, these initial transcript references are for 28^th November 2013.

9. He also said, in a matter of fact way, that he needed to fix up a computer at home which, in the event that the Mother and child were permitted to relocate, arrangements could be made for Skype.  In a somewhat similar vein, there was some discussion with Mr Percy about what he could or could not do in terms of picking up X, for example, from (omitted) airport if she was travelling by air from the (omitted) to (omitted).[4]

   [4] There was some later discussion, as will be seen, with the Mother, which confirmed that in fact there are no direct flights from the (omitted) to (omitted), but only to Sydney.  Therefore it would be significantly longer travel from the (omitted) to (omitted) via Sydney.

10. Mr Percy was asked whether he had made any enquiries regarding seeking any employment in the (omitted) area.  The Father said he had not made those enquiries for two reasons: firstly, he has a well paid permanent position currently; secondly, he did not wish the Mother and X to relocate so far away from (omitted) (or (omitted)).  Somewhat rhetorically, he noted that to move to the (omitted) would mean him having to start his working life all over again, and queried, in my view not unreasonably, why he would do that.[5]

    [5] See T16-17.

11. Mr Percy also said that he was open to the Mother and X moving to (omitted), where there would be greater employment opportunities for the Mother, and wider school opportunities for X.[6]  He said that if the Mother moved to (omitted), and in light of his current work hours, there would be not much difficulty in driving from (omitted) to (omitted), or from his place of employment to (omitted).  This was in the context of him offering to do whatever he could and whatever was necessary in order to assist the Mother, assuming that she was able to find employment and therefore she would need some assistance perhaps with the care of X. 

    [6] T18-19.

12. It might also be noted here that the Mother is significantly reliant on assistance from her parents, but they plan to sell their current residence and move away from the (omitted) area.

13. Mr Percy was asked at some little length about allegations of family violence between the parties.  He accepted, for example, that the relationship between the parties was, at times, somewhat volatile but in Mr Percy’s evidence, he said that (a) the Mother “gave as good as she got” and b) there was no physical violence between the parties, because he would never hit or touch the Mother.[7]

    [7] See the general discussion at T21-31.

14. For example, Mr Percy said from his perspective the issues of the alleged violence were more matters of perception between the parties.  Further, he explained certain things, such as a broken mirror, and a broken TV remote control, as items that either were previously broken or faulty, and/or, for example in the case of the mirror, it was quite fragile and that in the course of the Mother slamming drawers in a dressing table the mirror broke.  He confirmed that he had some part to play in the breakage of the mirror, but that the context was very different to that which was presented by the Mother.

15. Likewise, in relation to a much-discussed incident which involved the throwing of a container of spaghetti bolognese, Mr Percy confirmed that he never threw the container at the Mother or indeed that he had thrown anything at her on any occasion.  The Mother was standing beside the Father at the time he threw the container. 

16. The Father’s evidence also was that the child was not present when the container of spaghetti was thrown. 

17. The Father also showed, in my view, still a significant respect for the Mother, where he disagreed with an allegation by the Mother that he had called her a “fat, lazy bitch”.  In his oral evidence, he confirmed that the Mother was neither fat nor lazy.  Indeed, this evidence is consistent with earlier evidence of the Father put to him by Counsel for the Father: namely that he was still in love with the Mother.[8]

    [8] T 32.

18. Notwithstanding the not insignificant discussion regarding family violence, the Mother’s Counsel fairly conceded that family violence “doesn’t look as though it will be a real issue in these proceedings for the future”.[9]

    [9] See T26.

19. In relation to allegations that the Father used to throw the Mother’s and the child’s bedding out the front door and onto the front porch, the Father’s evidence was that he helped the Mother pack her car with bedding because the Mother and child used to go and stay with the maternal Grandparents on a regular basis.  I accept the Father’s evidence.

20. The Father confirmed that, as recently as January 2012, he was still hoping to reconcile with the Mother.[10] 

    [10] T31

21. The Father also confirmed, and did so on a number of occasions, that he would do whatever he could and whatever was necessary to assist the Mother in the care of X, not least in relation to after-school care.[11]

    [11] T34

22. In a similar vein, he said that he would assist financially and otherwise to ensure that the Mother “doesn’t struggle”.[12]  In passing here I note that it was agreed that the Father’s child support payments to the Mother are up to date.

    [12] T37

23. The Father accepted that X has a good relationship with her maternal Grandparents.[13] 

The Mother’s Evidence

[13] T39

1. In no particular order, the matters canvassed in the Mother’s cross-examination were as follows.

2. The Mother confirmed that X was not in the room when the Father threw the container of spaghetti bolognese at the wall.  It was also confirmed that X learnt of the incident by being told about it by the Mother.[14]

   [14] T44

3. In relation to the Mother’s claims from her affidavit of verbal abuse by Mr Percy in front of X, regularly the Mother was unable to give any relevant detail.  I do not say this with undue criticism, but it was not uncommon in the course of her evidence for her to make generalised statements which gave little substance to the claims that she was making.  Indeed, the issue of alleged violence against the Father was used, in my view, to significant effect by the Father’s Counsel. 

4. For example, it was put to the Mother that the verbal abuse and violence was “quite extreme violence”.  The Mother agreed.  The Mother further agreed that she was so frightened she went to (country omitted) for eleven months and did so without telling the Father.  And yet, at no time did she ever apply for an AVO, and proposes now that the Father spend significant time, without supervision, with X and, on the Mother’s proposal, where she would be many hundreds of kilometres away in the (omitted) region.  All of this is to say that it would appear there is significant disjuncture between, on the one hand, the Mother’s allegations of extreme violence perpetrated by the Father in front of the child, and on the other hand, the child being able to spend very regular and significant time with the Father away from the Mother’s protective care.[15]

   [15] See T47-55.

5. The Mother described her relationship with her parents as one of general dependence.[16] 

   [16] T48.

6. The Mother was never able, in my view, satisfactorily to explain why she felt compelled to go to (country omitted) to avoid the Father and to “recover from the loss of the marriage” with him, but more significantly, how or why she felt it necessary not to advise the Father (a) that she had left Australia and (b) where she was residing with X.  The Mother said that, initially, she did not think that the Father would have been interested to know where she and X were living overseas.[17]  She also confirmed that she deliberately concealed her whereabouts and that of X from the Father.  She confirmed that the Father effectively had to find out for himself.  After a number of questions to her, the Mother was unable to explain what remaining fear she might still have of the Father while she resided in (country omitted).  Ultimately she confirmed that there was nothing he could have done while he remained in (omitted) and she and X remained in (country omitted).[18]

   [17] T50.

   [18] T50.

7. The Mother further confirmed that she did not initially see that there was any need to inform the Father of her whereabouts and those of the child.  Under further questioning she conceded that the Father was entitled to feel upset in learning, after the event, that the Mother and child had fled to the other side of the world.[19]

   [19] T51 (28^th November 2013).  See also T25 (29^th November 2013).

8. By way of general comment, the Mother’s evidence on the aspect of her travel to (country omitted) and the concealment of this information from the Father was very concerning and is a particular reason why I would have little confidence in the Mother appreciating the significance of the child’s relationship with her Father.  Nor has she clearly thought of the impact on the child of again losing regular contact with her Father if she moved to the (omitted) area.  The Mother’s lack of parental insight in this regard is quite troubling.

9. The Mother did accept in the course of her evidence that X has a good relationship with her Father; this is so notwithstanding the extended break in that relationship when the Mother and child lived in (country omitted), and the Father had very limited contact with X during that time.[20]

   [20] T55.

10. The Mother also accepted that X living in closer proximity to her Father would make the maintenance and fostering of her relationship with him easier than if she and the child lived a very long distance away.[21]

    [21] T55.

11. The Mother said that her brother and his family lived relatively close to (omitted) near (omitted). 

12. In relation to various matters that arose from police records produced under subpoena, those records record that the Mother had made a statement to the police about she and X going overseas, and that Mr Percy knew about the trip.  The Mother confirmed that this was, in fact, a lie.[22]

    [22] T20 (29th November 2013).

13. The police records also showed (which matters were put to the Mother) that she had indicated to the police that there was no physical abuse perpetrated by the Father.[23]

    [23] See T21-22 (29^th November 2013).

14. The Mother confirmed also that the first that the Father had learnt of the proposal to relocate to (omitted) was when he read it in her affidavit material filed with the Court.  This is also to say that she had not previously advised him of this part of her application.[24]

    [24] T23 (29^th November 2013).

15. These matters suggest to me that the Mother lacked and possibly still lacks a significant degree of insight regarding the importance of X’s relationship with her Father. 

16. The Mother was cross-examined also about some of the recommendations and observations from the Family Report (discussed further below).  In the course of the Family Report, comments were made by the Family Consultant to the effect that a relocation such a large distance away from the Father would likely have a negative impact on X’s relationship with her Dad.  Notwithstanding these comments, the Mother still considered it to be in X’s best interests to relocate to the (omitted) area.[25]

    [25] See T28-36 (29^th November 2013).

17. The Mother confirmed that the prospects of employment in (omitted) are limited and that employment prospects were likely to be better in (omitted) if she was required to stay in (omitted).[26] 

    [26] T29 (29^th November 2013).

18. The Mother also confirmed that she had not put it in her affidavit material for the trial that if she was permitted to relocate, one of her parents would move with her to assist in the care of X.

19. The Mother also confirmed that she had only been to (omitted) on one previous occasion when she was in her twenties.[27]  She confirmed that there are no direct flights from (omitted) to the (omitted).  The Mother also confirmed that there was little information provided to the Court about employment prospects in (omitted) or the surrounding area.[28]

    [27] T31 (29^th November 2013).

    [28] T33-34 (29^th November 2013).

20. The Mother confirmed that she knew of the offer made by the Father’s sister to offer further support to her in the care of X if at any time the Father was unable to assist.[29]  The Father’s sister was not required for cross-examination. 

    [29] T32 (29^th November 2013).

21. Finally, the Mother said that she was open to a suggestion put by the Court to the effect that she and X stayed in either the (omitted) or (omitted) area for the next 18 months or so to consolidate the child’s relationship with her Father and then being able to relocate.[30]

    [30] T36-37 (29^th November 2013).

22. It might be immediately noted here that (a) the Father opposed such a course, and (b) the lack of evidence in relation to the currently proposed move suggests (as submitted by the Father) that a move later in time is even more without evidentiary foundation.  It would also likely (and very unhelpfully) prolong the litigation between the parties.

Evidence of the Family Consultant

1. The two reports of Ms M, dated respectively 15^th May and 15^th October 2013, were admitted into evidence as Exhibits A1 and A2.

2. Ms M’s evidence was relatively brief.  Firstly, by reference to paragraph 13 of her first report, she confirmed that her observations of X with her Father indicated that she did not demonstrate any fear of him; she also confirmed that she was concerned about the Mother’s lack of insight into the fact that the child needs to have a meaningful relationship with both parents for optimal development.[31]

   [31] T44-45.

3. Ms M confirmed that the child living closer to her Father was in her best interests, and she agreed with the propositions that the Mother has no job, no accommodation and has only visited recently on one occasion the proposed locality for her relocation, and that in these circumstances there would be limited opportunities to facilitate time between X and her Father.[32]

   [32] T47.

4. After some discussion about what might be described as option 3, namely the Mother and child remaining close to the Father for the next 18 months or so, the Family Consultant confirmed or agreed that anything further off into the future was necessarily quite speculative.[33] 

   [33] T49.

5. Ms M confirmed that it seemed to her that the Mother had not put a lot of thought into her proposal to relocate, given the lack of detail that had been provided about it.[34]

   [34] T53.

Documentary Evidence

1. From the Family Consultant’s, Ms M, reports, I note the following.

2. First, from her substantive, first report, dated 13^th May 2013 (Exhibit A1) Ms M noted, by way of something of an overview of matters, that (par.13) (emphasis added):

   The father stated that he had no concerns for the child in her mother’s care saying “Ms Heffernan’s a pretty good Mum.” The mothers’ concerns included the alleged violence and aggression, the father’s ability to provide adequate nutrition and stimulation for reading and writing, as well as the child’s speech patterns. The mother stated that “X has a nice way of speaking” which she developed in (country omitted) and she had concerns that the child would lose this by spending extended periods with her father. When asked about the move from supervised time with X to the possibility of extended periods of time without her due to the proposed relocation the mother stated “I thought that’s what I had to do” in relation to the time spent. The mother also used this explanation in regard to dismissing the Apprehended Violence Order and returning to the family home with the child in 2009. The mother did not see any inappropriate action in taking the child to (country omitted) for an extended holiday without consulting the father. This pattern of decision-making shows a disengaged style which has limited insight into the needs of the child in having a relationship with her father. It also suggests that the mother’s anxiety regarding the father’s potential for violence is not closely aligned to her consideration of arrangements for the child. For example the mother stated “I thought that once we move I would meet Mr Percy halfway and then we’d just stay in the middle somewhere and he would spend time with X there.”

1. At pars.16-17 of her first report, Ms M observed (emphasis added):

   [16] It appears that the mother’s anxious approach and the father’s passive approach have led to mistrust and conflict which impacts on the child’s view of each parent.  In addition, the child has been away from the father for an extended period of time leaving her with little evidence of him to establish her own understanding of her level of safety with her father. This now needs to be rebuilt and the current arrangements will be impacting on her ability to do this as the message she is receiving is that she is not allowed to see her father on a daily basis as she has stated to the father both on play dates and also in front of the psychologist.

   [17] X presented as a confident and happy child who easily left her mother and interacted well with the adults around her. She interacted well with her father, inviting him into her play. X made certain of when she would see her father again, and commented that she would like to see him more often.

2. Further in relation to X, Ms M said (emphasis added):[35]

   [20] X displayed no anxiety or concerning behaviours with either parent, or alone with the psychologist, she was able to speak confidently and well about both parents and displayed no distress other than ensuring that she knew when her father would be next picking her up.

   [35] Ms M noted, at [19] of this first report certain comments and information from X which indicated that the child had been involved in the conflict between her parents.  I need not elaborate on this, other than to observe that such is another area of concern about the Mother’s insight in providing such information to the child.

3. In the course of her formal evaluation, Ms M said (emphasis added):

   [23] The current arrangements for X are based on mistrust between the parents, and the child is reportedly picking up on this according to the mother’s examples of the child’s anxious behaviours. X presents as a very confident and happy child who enjoys playing with both adults and other children. She has stated that she would like a more normal and meaningful relationship with her father requesting that she sees him “each day,” and does not appear to understand the significance of the story she relates about her father throwing her food.

4. And in the conclusion in her first report, the Family Consultant said (emphasis added):

   [25] The mother’s request to relocate indicates a continuation of decision-making that has not placed the child’s need for a relationship with her father as a priority. After an extended stay in (country omitted), the mother is requesting to move a great distance around one year later.  Such a confused and varied opportunity for a relationship between the child and her father is likely to have a negative impact on the child.

5. In the course of her second report (Exhibit A2), which is properly described as an ‘addendum’ to the first report, Ms M recorded a range of matters raised by the Mother as follows:

   [12] The mother stated that if she were required to remain in the location as stated by the father that she would find it extremely difficult to support herself and X financially. She reported that in order to obtain employment that would enable her to meet living expenses and additional child care costs she would need to seek employment in (omitted), which is outside the distance requested by the father as it is around 80km from (omitted). The mother stated that she had been able to travel to (omitted) for study due to her parents being available for childcare, and shared living expenses. She reported that in order to remain within the area specified by the father that she would have difficulty finding (omitted) work that would pay sufficiently to support herself and X.

6. Then, by way of further evaluation, which was predicated upon both parents reporting that X had adapted well to the increased time with her Father, and that there had been no reports of anything untoward in relation to the time spent between Father and daughter, Ms M reported (emphasis added):

   [17] Children’s best interests are served when they have access to a meaningful relationship with both parents. Research has shown that children in such environments are more positively developed in academic, social and self-esteem areas of functioning. Reports from both parents indicate that X is currently living in an environment which fosters this development path. Such an environment includes regular time spent and contact with each parent to share significant and daily activities and routines. X is of an age where she can developmentally manage a distance relationship with a parent, so long as she has regular contact and time spent with the non-resident parent.

7. Having had the benefit of observing and listening to the evidence of both parties, and in the light of Ms M’s oral evidence, I should be taken to accept unreservedly the comments and observations of the Family Consultant.  I agree with her assessments of the parties as recorded in her reports.

Legislative Pathway: Discussion

1. In the light of the evidence of the parties, and the comments already made in relation to it, I note the following in relation to the statutory scaffolding that must be negotiated in determining orders that are in X’s best interests, pursuant to s.60CA of the Family Law Act1975 (“the Act”).

2. Subject to what is said later in these reasons, a convenient jurisprudential touchstone for the following discussion is the summary of principle by Brown J in Mazorskiv Albright in relation to Part VII of the Act, noting, of course, that there have been significant changes to the primary and additional considerations in relation to “family violence”. Respectfully, and cognisant of the ‘family violence’ changes to the ‘pathway’, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c).[36]  At [3] – [6] her Honour said:

   [3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

   [4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

   [5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

   [6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

   [36] (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.

3. Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[37]

   [37] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.

   [20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions.  At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach.  The paragraph continues:

   The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.

   [21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division.  The objects use the words “meaningful involvement”.

   [22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:

   The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody.  The presumption relates solely to the decision making responsibilities of both parents.  New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.

   [23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):

   [196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship.  This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents.  This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time.  The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders.  This is set out in s 60CA by item 9.

   …

   [199] Section 65DAA (2) – (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement.  It is intended to ensure a focus both on the amount of time and the type of time.  It would include both day time contact and night time contact.  It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child.  It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.

   [24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”.  A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”.  These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989.  It defines “meaning” (in generalised use) as “significance”.  The examples provided take the matter no further.

   [25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”.  Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.  I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive [sic] one.  Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

4. Also of particular significance in the current matter are the detailed comments of Boland J (sitting as the Full Court) in Morgan v Miles.[38]  I note the following from her Honour’s judgment.

   [38] Morgan v Miles (2008) 38 Fam LR 275. Among more recent Full Court decisions regarding relocation, I note that in Cales v Cales (2010) 251 FLR 454; (2011) 44 Fam LR 376 (May, Boland & Cronin JJ), at [139], the Court noted and confirmed a range of other Full Court decisions which expressly and emphatically stated that the older authority of A v A: Relocation Approach (2000) FLC 93-035 no longer reflects the principles to be applied in a relocation case and should not be followed. See also the general discussion in Sayer v Radcliffe (2013) 48 Fam LR 298 and the insistence on addressing the proposals of the parties in the context of making orders in the child’s best interests.

5. First, at [55], Boland J said (emphasis added):

   There is nothing in the legislation which provides that a parent who has existing order which provides that the child spends fifty per cent or more of his or her time with that parent has a unilateral right to move the child, (on the basis that this is in the child’s best interests). Whilst such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation. It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.

6. Then, [72] – [78], her Honour outlined some of the changes that had been brought into effect by the 2006 amendments to the Act. She said (internal references omitted; emphasis added):

   72. There can be no dispute that in determining a case where one party, which research indicates is invariably the mother… wishes to relocate, a court is making a parenting order generally about who the child will live with or with whom the child shall spend time. The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.

   73. It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole, consideration.

   74. The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order.  The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.

   75. It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significantly more difficult for that child to spend time with the “left behind” parent.

   76. If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally.

   77. The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.

   78. Section 60I requires parents, if no exclusionary factors such as abuse, family violence or urgency apply, whether there is an order under s 61C, or s 61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner.

7. Then at [80] – [81], the Court observed:

   [80] It follows from my exposition of the legislation, that earlier core principles:

   - that the child’s best interests remain the paramount but not sole consideration;

   - that a parent wishing to move does not need to demonstrate “compelling” reasons;

   - that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and

   - the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   [81] What the legislation now requires is:

   - consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   - if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility -

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.

8. And at [91] and [92], Boland J said (emphasis added):

   [91] … 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.

   92. Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves.  Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.

1. Against the background of principle just outlined, I note the following by reference to the statutory scaffolding in Part VII of the Act.[39]

   [39] Without necessarily naming every sub-section or paragraph in s.60CC(3), unless otherwise specified, I should be taken to follow the order of that sub-section sequentially.

2. The Father’s relationship with X is good, but given the history of recent times, and in the light of the evidence of the Family Consultant, it must still be considered to be developing, for the purposes of s.60CC(2)(a).  And given the concession by the Mother’s Counsel regarding ‘family violence’ not being an issue for the future, the matters comprehended by s.60CC(2)(b), s.60CC(2A) and s.60CC(3)(j) and (k) have no relevant application.

3. Given the child’s age, there are no relevant views of X to consider.

4. I have already noted, and I accept that (a) the Mother has been and remains X’s primary carer, (b) X has a good (but still developing) relationship with her Father, and (c) X has a good relationship with her maternal Grandparents.

5. I will treat s.60CC(3)(c) and (ca) together.  In this regard, and in the light of the evidence, I accept that (i) the Father is amenable to the provision of information by the Mother regarding, for example, matters relating to X’s dietary requirements (I suggest, but do not order, that a communication book is likely to assist, even simply as a record of relevant matters between the parties), (ii) once he learnt of the Mother’s surreptitious translation to (country omitted), the Father pursued, as best he could, all relevant (albeit limited) steps to ensure some ‘contact’ with his daughter [by telephone], (iii) the Mother’s secretive move to (country omitted) with the child and the denial of any information to the Father showed significant lack of insight and attention to X’s needs vis-à-vis the child’s relationship with her Father.  Apart from these matters, clearly the Mother has been able to provide relevantly for the child, as has the Father in his somewhat embryonic relationship with his daughter.

6. It would seem to be a self-evident proposition, which was belatedly but ultimately accepted by the Mother, that a move to a location that was (or is) a very large distance from the Father’s residence, would risk his relationship with X.  The Family Consultant highlighted how problematic such a move would be for the child’s relationship with her Father.  Particularly given how long the Mother had surreptitiously absented herself and the child from the Father’s life (I might add, with the assistance of her parents), I am even more concerned about any further disruption to the Father-daughter relationship, which would necessarily occur if the Mother was permitted to relocate with the child to such a distant locality as (omitted).

7. Similarly problematic, in my view, are the matters that arise under s.60CC(3)(e).  The Mother’s vague evidence about basic matters regarding the proposed relocation did not help her cause.  While I accept that it could be something of a ‘chicken and egg’ situation – namely, how can the Mother have detailed or concrete plans for the relocation until she knows if she is permitted to go – her inquiries or proposals remained, in my view, at such a level of generality, as well as being incorrect in certain respects (e.g. telling the Family Consultant that there were direct flights between the (omitted) and (omitted) when that is plainly incorrect), as to cause her case to be fundamentally flawed.  In any event, to move such a large distance from the (omitted) area to the far north coast of New South Wales, in my view, would genuinely risk the young child’s relationship with her Father, so much so that it should not be permitted.

8. Moreover, there would be significant expense and practical difficulty more generally in arranging regular travel for the child (as well as parents) to travel between (omitted) and (omitted).  Further, having regard to X’s young age, the issue of travel and the costs and time involved would likely become very major disincentives for the child to spend time with her Father.  This would be even more so the case in circumstances where the Court is less than sanguine about the Mother’s employment in a new area, as well as being so far removed from the Father.

9. Further, the suggestion put to the Father that he should give up his well-paid and permanent employment, and move to the far north coast of New South Wales, so as to enable to the Mother to relocate and for his relationship with X to be maintained, respectfully, defies logic not to mention common sense.  With the Mother having no employment, and no particular details of what she will do (accepting, as I do, that she has recently completed some studies in (course omitted)), to suggest that the Father give up his employment, from which he pays significant child support, respectfully would be an exercise that bordered on folly.

10. The matters already canvassed, in my view, allow the Court to find that there are no issues regarding the provision of care and the other matters prescribed by s.60CC(3)(f) and (g).

11. In my view, the orders proposed by the Father are not only in X’s best interests but also they are the least likely to lead to the institution of further proceedings.

12. With the parties now having agreed on an order for equal shared parental responsibility, such an order requires the Court to consider the provisions of s.65DAA.  In doing so, the Court must also be mindful of the High Court’s comments in MRR v GR in relation to that section.[40]

    [40] MRR v GR (2010) 240 CLR 461 at [13] and [15] are especially relevant, not least the Court’s emphasis on the responsibility of the trial court to have regard to “the reality of the situation” and to make a “practical assessment” regarding the requirements of s.65DAA and their application to the facts.

13. Neither party seeks an order for equal time.  In my view, having regard to the Father’s work commitments, such an arrangement is impractical and unwarranted here.  It would not be in X’s best interests.  Her best interests are served by remaining in the primary care of her Mother.

14. Indeed, having regard to the ‘reality of the situation’ and taking a ‘practical assessment’ of the situation, as mandated by the High Court, in my view, the orders sought by the Father satisfy the requirements of s.65DAA(2) (also having regard to the description of ‘reasonable practicality’ in s.65DAA(5)) in relation to ‘substantial and significant time.’

Disposition

1. In Morgan v Miles, Boland J said, at [79]:

   In considering whether the child should live with the parent who proposes to relocate a court:

   • Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   • Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   • Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   • If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   • In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   • When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   • Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.  Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   - that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   - that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   - that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   - the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   • Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.

2. Having regard to the principles outlined by the Full Court and other authorities to which I have referred, and in particular to X’s best interests, in my view, the evidence points unquestionably to the following conclusions:

   (a)    the Mother’s proposal to relocate is un-structured with insufficient attention to relevant, indeed basic, detail.  It is remarkably vague and is an insufficient base to enable the Court properly to determine that such a move would be in X’s best interests.  As previously noted, established authority confirms that the Mother is not required to establish compelling reasons in order to relocate.  However, in my view, a vague and ill-considered proposal to move to an area without any apparent thought regarding job, housing and particularly the impact on X and the relationship with her Father, goes significantly beyond the scope or ambit of the Court’s structured exercise of discretion in this instance;

   (b)    accordingly, the Mother is not permitted to move to the far north coast of New South Wales;

   (c)    the Mother is permitted to move to (omitted) with the child, and

   (d)    unless otherwise agreed in writing between the parties (or by Court order), the Mother is restrained from moving with the child outside a radius of 50 kilometres of the (omitted) area, save that, upon giving the Father written notice of no less than 21 days, the Mother is permitted to move, with the child, to an area that is within a radius of 50 kilometres of (omitted).

   (e)    otherwise, the orders sought by the Father should be made as being in X’s best interests.

3. The Court so orders.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:     28 May 2014