Portelli & Wymer - [2021] FedCFamC1F 339

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Portelli & Wymer [2021] FedCFamC1F 339

File number(s): MLC 3231 of 2019

Judgment of: MCEVOY J

Date of judgment: 22 December 2021

Catchwords: FAMILY LAW – CHILDREN – RELOCATION – Where the mother seeks to relocate with the child from Sydney to Melbourne and in the alternative that she retain the primary care of the child in Sydney – Where the father resists the relocation application and seeks a week-about shared care arrangement in Sydney – Where the mother contends that the child will have a meaningful relationship with the father regardless of whether the child lives in in Melbourne or Sydney and that relocation will allow her to further her career, enjoy the support of her family and friends and improve her mental health – Where the mother says the father is not capable, having regard to his work commitments and emotional attunement to the child, to meet the demands of a shared care arrangement – Where the father submits that his relationship with the child would be materially diminished if he were to relocate and that the mother can continue her career from Sydney, maintain the support of her friends and family in Melbourne, and continue to engage with her treating practitioners to mitigate any detrimental impact the refusal of her application may have on her mental health - Where the parties agree that they should have equal shared parental responsibility – Where there are no allegations of family violence or abuse and both parties accept the other is a good parent – Principles to be applied in relocation cases – Where it is found that it is in the best interests of the child and reasonably practicable that he have substantial and significant time with the father – Where it is found that the demands of the father’s work and his lack of emotional attunement to the child are such that that it would not be in the best interests of the child or reasonably practicable for there to be a shared care arrangement – Where it is found that relocation of the child to Melbourne would impair the meaningful relationship between the child and the father –Where it is found it is in the best interests of the child for him to continue living in Sydney and be cared for primarily by the mother – Orders made largely in the terms sought by the mother on an alternate basis.

Legislation:
Evidence Act 1995 (Cth) section 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 64B, 65D, 65DAA, 65DAB, 65DAC, 90C, 117

Cases cited: AMS v AIF (1999) 199 CLR 160
Angeli & Farina [2020] FamCA 975
Asher & Wilkinson (2020) 61 Fam LR 523
Babcock & Waddell [2018] FamCA 276
Beaton & Beaton [2020] FamCAFC 297
Bolitho & Cohen (2005) FLC 93-224
CDJ v VAJ (1998) 197 CLR 172
Donnell & Dovey (2010) FLC 93-428
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey & Sanders (2007) 208 FLR 287
Goode & Goode (2006) FLC 93-286
Gordon & Westmead (No. 2) [2012] FamCA 546
Hepburn & Noble (2010) FLC 93-438
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
M & S (2006) FLC 93-313
Mulvany & Lane (2009) FLC 93-404
Oswald & Karrington (2016) FLC 93-726
Poisat & Poisat (2014) FLC 93-597
Sigley & Evor (2011) 44 Fam LR 439
Taylor & Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238
Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance

Number of paragraphs: 152

Date of last submission/s: 26 April 2021

Date of hearing: 9-12 March 2021, 15-17 March 2021

Place: Melbourne

Counsel for the Applicant: Mr Dickson QC with Mr Sweeney

Solicitor for the Applicant: Lander & Rogers

Counsel for the Respondent: Ms Vohra SC with Ms Fiskin

Solicitor for the Respondent: Barkus Doolan Family Lawyers
ORDERS

MLC 3231 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS PORTELLI

Applicant

AND:
MR WYMER

Respondent

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

22 DECEMBER 2021

THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the child of the marriage, X born on … 2015 (“the child”).
2.The child live with the mother.
3.The child spend time with the father on a fortnightly basis during school terms as follows:
(a)In 2022:
(i)in week 1 from the conclusion of school on Friday (or 3.00pm if a non-school day) to the commencement of school on Monday (or 9.00am if a non-school day); and
(ii)in week 2 from the conclusion of school on Thursday (or 3.00pm if a non-school day) to the commencement of school on Friday (or 9.00am if a non-school day);

(b)In 2023 and each year thereafter:
(i)in week 1 from the conclusion of school on Thursday (or 3.00pm if a non-school day) to the commencement of school on Monday (or 9.00am if a non-school day); and
(ii)in week 2 from the conclusion of school on Thursday (or 3.00pm if a non-school day) to the commencement of school on Friday (or 9.00am if a non- school day).

4.During the term school holidays, and unless otherwise agreed in writing between the parties, the child spend one half of the school term holidays with the father and failing agreement for that time to occur in the first half of the holiday period.
5.During the long summer holidays (as set by the school at which the child attends), the child spend one half of all long summer holiday periods with the father, and failing agreement as follows:
(a)during the 2021-2022 long summer holidays, on a week about basis, with the child to spend:
(i)the first week and each alternate week thereafter with the mother; and
(ii)the second week and each alternate week thereafter with the father;

(b)during the 2022-2023 and 2023-2024 long summer holidays, with the child to spend the first 40 nights in "10-night blocks" as follows:
(i)the first and third "10-night block" period with the mother;
(ii)the second and fourth "10-night block" period with the father,

and for the remaining holiday period to be shared equally between the parties by agreement;
(c)during the 2024-2025 long summer holidays and every second year thereafter, with the child to spend the first two weeks with the father, the second two weeks with the mother and for the remaining holiday period to be shared equally between the parties by agreement; and
(d)during the 2025-2026 long summer holidays and every second year thereafter, with the child to spend the first two weeks with the mother, the second two weeks with the father and for the remaining holiday period to be shared equally between the parties by agreement.

6.On the following special occasions, the time that the child spends with the parties in accordance with orders 3-5 hereof be suspended and the child spend time with the parties on those occasions as follows:
(a)in 2021 and each alternate year thereafter, with the father from 3.00pm on Christmas Eve until 2.00pm on Boxing Day;
(b)in 2022 and each alternate year thereafter, with the mother from 3.00pm on Christmas Eve until 2.00pm on Boxing Day;
(c)for Easter:
(i)in even numbered years, with the father from 5.00pm on the Thursday before Good Friday until 5.00pm on Easter Monday;
(ii)in odd numbered years, with the mother in Melbourne from 5.00pm on the Thursday before Good Friday until 5.00pm pm Easter Monday;

(d)on the child’s birthday, the child spend time with the parent with whom they are not living on that day in accordance with orders 3-5 hereof from after school until 5.30pm (if it is a school day) or from 9.00 am until 1.00pm (if it is a non-school day) or as otherwise by agreement; and
(e)on each of the parties’ birthdays, the child spend from 9:00am (or from after school if it is a school day) until commencement of school the following morning (or 9:00am if a non-school day) with the party whose birthday it is, or as otherwise by agreement.

7.In the event that:
(a)the child’s time with the father (in accordance with order 3 herein) does not align with Father's Day, the child shall spend time with the father from the conclusion of school Friday until the commencement of school Monday and with the time that the child would have otherwise spent with the mother to occur at another time to be agreed between the parties and failing agreement, the following scheduled weekend with the father;
(b)the child’s time with the mother does not align with Mother's Day, the child shall spend time with the mother from the conclusion of school Friday until the commencement of school Monday and with the time that the child would have otherwise spent with the father to occur at another time to be agreed between the parties and failing agreement, the following scheduled weekend with the mother.

8.The parties each do all things necessary to ensure that the child has reasonable telephone and FaceTime contact with the other parent whenever he is in their respective care, with such communication to be not less than on Monday, Wednesday, Friday and Saturday at 5.30pm (being the time in the place in which the child is) or such other time as the parties may agree.
9.For the purposes of the time the child is to spend with each party pursuant to these orders, changeovers occur at the child's school if a school day, and otherwise changeover occur at the father's home (at the commencement of the child's time with the Father) or the mother's home (at the conclusion of the child's time with the Father) if a non-school day, or as otherwise agreed between the parties.

Overseas Travel
10.The child’s name be removed forthwith from the Australian Federal Police Family Law Watchlist.
11.Each party be at liberty to take the child out of Australia during his time with them, provided:
(a)the party taking the child overseas (“travelling parent”) provides the other party with no less than 30 days' notice of the planned travel;
(b)no less than 14 days prior to the travel, the travelling parent provides the other party with a detailed travel itinerary and contact details for the child while they are overseas;
(c)the travelling parent facilitates reasonable telephone and/or Skype communication between the child and the other party while the child is overseas, not to be less than two occasions per week for the duration of such travel.

12.The child’s passport is to be released forthwith from the mother's solicitors to the mother and:
(a)the mother shall facilitate the production of the child’s passport to the father by no later than 14 days before the father is to travel overseas with the child; and
(b)within 14 days of the child's return from overseas with the father, the father shall facilitate the return of the child's passport to the mother.

13.Both parties will sign all documents necessary to obtain or renew the child's passport within 7 days of receiving a request from the other party with the cost to be shared between the parties.

Other Matters
14.Each party be at liberty to provide a copy of these orders to any school which the child attends, or any medical practitioner treating the child, and each party authorise the other to receive any and all information pertaining to the child's school attendance, functions, sporting events and in the case of medical issues, any and all relevant health information.
15.Each party be at liberty to attend events in which the child is involved whilst the child is in the care of the other party (with the party who has the child in their care, save as otherwise specifically referred to in these orders, to remain responsible for the child's day to day care at such event and transportation to and from such event.)
16.The parties each immediately inform the other of any serious illness or injury sustained by the child whilst in their care and further provide particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.
17.Each party keep the other advised of their telephone number and email address contact details, and any change to those contact details.
18.The parties each be restrained from denigrating the other party (or any member of the other party's family) in the presence or hearing of the child and use their best endeavours to ensure no other person denigrates the other party or any member of the other party’s family in the presence or hearing of the child.
19.All extant applications be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Portelli & Wymer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCEVOY J:
INTRODUCTION

The parties to these proceedings are the applicant mother, Ms Portelli (“the mother”) and the respondent father, Mr Wymer (“the father”). The proceedings concern the future parenting arrangements for the parties’ only child, X (“the child”) born in 2015 and presently aged six. The child attends L School in Suburb M, New South Wales, and has now completed his preparatory year. The child lives with the mother in Sydney and spends three nights and one afternoon per fortnight with the father, also in Sydney, in accordance with orders that were made on 17 April 2019.
Although the mother is originally from Melbourne, the parties were both living in Sydney prior to the commencement of their relationship. The father was born, raised, and educated in Sydney, and his immediate family live in Sydney. The mother moved from Melbourne to Sydney to work in or about 2005. She commenced a relationship with the father at some time in the period 2005-2007, and the parties cohabited from about 2007. They married in Sydney in March 2014. The child was born in Sydney late the following year. Save for frequent trips to Melbourne and elsewhere in Australia and overseas, the parties have resided primarily in Sydney since the child’s birth, and the mother for some ten years before that.
In issue is whether the mother should be permitted to relocate with the child from Sydney to Melbourne, and the spend-time arrangements for the child which should be put in place if this occurs, or if she and the child remain in Sydney. The parties agree that regardless of whether the mother and the child relocate to Melbourne, they should continue to share parental responsibility for the child.
The mother says that she wants to return to Melbourne with the child so as to advance her career as a professional and increase her involvement within her family businesses. She also wants to be closer to a network of family and friends who reside in Melbourne. She says that permitting her to relocate with the child will improve her mental health and increase her happiness, which in turn will impact positively upon the quality of care she can provide to the child. If she is permitted to relocate, the mother proposes that the child spend time with the father every weekend, or for longer periods on three weekends at his election, with one of the weekends to be spent in Sydney. Should she not be permitted to relocate the mother proposes that the child live with her in Sydney and gradually increase his time with the father such that he ultimately spends five nights per fortnight with the father.
The mother maintains that she has been the primary carer of the child since his birth and that he is happy, healthy, and well-adjusted. She resists her displacement as the child’s primary carer and the father’s proposal for shared care should the Court not permit her and the child to relocate to Melbourne. The mother submits that regardless of whether she lives in Melbourne or Sydney, it is not in the child’s best interests for the child to spend equal time in the care of each party. She contends that the child has a strong and positive attachment to her, and that the father has not availed himself of additional opportunities to spend time with the child. The mother submits also that the father’s proposals are contrary to the family report writer’s recommendations. She says that the father is inflexible in relation to his work, and that in all probability he will need to rely on others to care for the child. It is her position that the Court can have no confidence that the father will be available for the child, and that he leaves the Court with no more than a ‘bald statement of asserted flexibility’.
The father contends that it is not in the child’s best interests for him and the mother to relocate to Melbourne. It is his position that since the child’s birth the mother has managed her life in and from Sydney, which has included working in her family’s businesses and visiting Melbourne for business and to see her family and friends whenever she wished to do so. He also contends that the mother’s support network in Melbourne is not as significant as she claims, and that the mother should bear the burden of any travel between Melbourne and Sydney, not the child. The father maintains that there is no impediment to the advancement of the mother’s career in her family’s businesses should she remain living in Sydney. It is his position that the child should continue to live in Sydney with the mother, and spend time with the parties eventually progressing to shared care on a week about basis. While the father has significant existing Sydney based work commitments which would not allow him to relocate to Melbourne, he says that he has the benefit of being able to structure his work commitments around the child to some degree. Whether the father has such flexibility was a matter of contention between the parties.
If the Court were to accede to the mother’s relocation application the father proposes that the child reside with the mother in Melbourne and spend alternate weekend time with him and the paternal family in Sydney, together with additional time in Melbourne. However he submits that if the child does relocate with the mother to Melbourne, over time the child will become more entrenched in school and home life in that city. The father submits that the mother’s proposed regime for the child to spend time with him will become increasingly impractical as the child gets older and the child will likely become resistant to spending time with the father on weekends. The father contends that if the child lives in Melbourne their relationship will inevitably be diminished and the time that the child could have with him would be limited, both qualitatively and quantitatively.
Furthermore, the father maintains that the mother cannot appropriately discharge her role as a gatekeeper of the relationship between the child and him. He says this is evidenced by the mother’s belief that the father has significant character flaws and the fact that the mother abruptly removed the child from Sydney on several occasions during their marriage. He contends that the changes the child will experience by relocating will be a significant and substantial disruption to him, and that the loss of his relationship with his father and paternal family will be irreparable. The father submits that it is in the child’s best interests that he remain living in Sydney with the mother, and that he eventually divide his time between the homes of both his parents.

For the reasons which follow I have formed the view that the best interests of the child, and in particular the likely impingement of his meaningful relationship with the father were he to relocate to Melbourne, require that the mother not be permitted to relocate with the child. Although I accept her right to freedom of movement, and have weighed carefully the practicability of her relocation proposal, in the particular circumstances of this case I am satisfied that the welfare of the child would be adversely affected were he to relocate to Melbourne with her. The mother’s undoubted right to freedom of movement must therefore defer to the paramount consideration of the children’s best interests. I do not, however, consider that it would be appropriate for the parties to progress towards an equally shared care arrangement in Sydney. Simply put I do not consider that the father has the ability to make himself sufficiently available to the child or the capacity for intuitive empathy and emotional attunement to make this feasible. There will, accordingly, be orders broadly in the terms proposed by the mother in the event that she is not permitted to relocate, together with some additional orders.
BACKGROUND
The mother was born in 1981 in Melbourne and is 40 years of age. The father was born in 1978 in Sydney and is 43 years of age. The parties met in the United States in or about 2004. As has been mentioned they commenced their relationship in the period 2005-2007, married in 2014, and the child was born the following year.
Both parties admit that they experienced marital difficulties for several years before they ultimately separated. The mother asserts the parties separated on two occasions prior to their final separation in March 2019. They disagree about when in March 2019 they separated on a final basis, but nothing turns on this. It seems clear however that the mother travelled with the child from Sydney to Melbourne on 25 March 2019 and telephoned the father on 27 March 2019 to inform him that she would not be returning with the child and that she had engaged lawyers. The parties were divorced on 16 August 2021.
The mother says she became aware of the father being involved in a relationship with someone else in February 2017 and that this led to a separation in March 2017, with her travelling to Melbourne with the child. The mother says the parties separated again in or around February 2018, once again with the mother travelling to Melbourne with the child. The father says that marital difficulties occurred for a number of reasons, including his engagement with this other woman in an “on and off” relationship. Whatever be the position, the subject of the father’s affair was the subject of significant attention at trial.
The mother continues to live with the child in the former matrimonial home in Suburb K, Sydney. The father resides in a property that he owns in Suburb N, Sydney. The mother is currently employed as a non-executive director of O Pty Ltd (“O Company”) and P Pty Ltd, trading as P Company (“P Company”). She is also an alternate director (to her father) of Q Limited (“Q Company”). O Company is an international company with headquarters in Suburb R, Victoria. P Company operates from S Town, in Victoria, and Q Company’s head office is in Suburb T, Victoria. The mother assumed these roles due to the ill health of her father, Mr A Portelli (“the maternal grandfather”). She says she has had to accept more responsibility in these roles and she seeks to assume further responsibilities should she be permitted to relocate to Melbourne with the child.
The father is employed by the V Company and is responsible for four company branches. He works at the Suburb U and Suburb W branches in southern Sydney. His role requires him to attend at the branches on a daily basis, although he says he has some flexibility. He also operates a business called Y Company, located in Victoria, New South Wales, and the Australian Capital Territory.
It is uncontroversial that the parties have access to significant family wealth. At the commencement of cohabitation they were both employed in the transport or related industries. Their employment was with businesses that were owned by their respective families or in which their respective families held significant interests. On 9 April 2015 the parties entered into a financial agreement pursuant s 90C of the Family Law Act 1975 (Cth) (“the Act”). This financial agreement records that as at February 2015 the net value of assets in the Trust controlled by the maternal grandfather was very significant indeed, and the net value of the assets in the Trust controlled by Mr E Wymer, (“the paternal grandfather”) was also substantial.
The mother is generally in good health, however she was diagnosed with postpartum depression in mid-2016 and she continues to take anti-depressants and to experience depression and anxiety. The mother says she is presently in a casual relationship. The maternal grandfather and the mother’s step-mother reside in Melbourne. Her mother and step-father resided in Queensland during the trial, but indicated that they were planning to move back to Victoria. The maternal grandfather was diagnosed with multiple sclerosis in 1997, and in 2019 there was a serious deterioration in his health. It is said by the mother that her father is unable to continue his level of involvement in the family businesses. He was too unwell to give evidence at the trial.
The father is generally in good health also, although he says that he has become increasingly depressed and anxious as a result of the proceedings and the mother’s ‘unilateral removal’ of the child. He claims also to suffer from sleepless nights, being short of breath, and being in a state of anxiousness. He has not been diagnosed with any mental health issues. The father appeared still to be in a relationship with this other woman at the time of trial.
HISTORY OF PROCEEDINGS
On 27 March 2019, having left the father suddenly with the child and flown to Melbourne, the mother initiated proceedings in the Melbourne Registry of the Family Court of Australia seeking interim and final parenting orders that the parties have equal shared parental responsibility and that the child live with her in Melbourne. She otherwise sought interim parenting orders that the child spend time with the father one weekend every four weeks in Sydney, one weekend every four weeks in Melbourne, for certain special days with the father and for ancillary matters.
The father initiated proceedings on the same day in the Sydney Registry of the Family Court, seeking that the child be placed on the Airport Watchlist (“the Sydney proceedings”) together with a recovery order as well other interim and final orders. A Watchlist order was subsequently made, and on 1 April 2019 other interim orders were made by consent, including for the child to spend time with the father.
The mother filed a Response on 8 April 2019 in relation to the Sydney proceedings seeking orders, amongst other things, that they be consolidated with the proceedings commenced in Melbourne on 27 March 2019 and be heard in Melbourne. She also proposed interim parenting orders in substantially similar terms to the orders she sought in her Initiating Application in the Melbourne Registry on 27 March 2019.
On 17 April 2019 the matter came before a Senior Registrar and interim orders were made that the parties have equal shared responsibility for the child, that the mother return the child to live within 20km of the General Post Office in Sydney, and that the child live with the mother but spend time with the father. The mother had informed the Court that she would return to Sydney if the child was ordered to be returned to Sydney. The proceedings commenced in Melbourne by the mother were dismissed, albeit that order was stayed for 35 days.
The mother thereafter sought a review of the Senior Registrar’s decision, and a stay of the order dismissing the Melbourne proceedings. On 17 May 2019 a Deputy Registrar made orders that the orders of 17 April 2019 be stayed until 21 June 2019, and that the mother’s review application be heard on 21 June 2019. Orders were also made on this day that the parties have equal shared parental responsibility, that the mother return with the child to Sydney by no later than 8 May 2019, and that the child live with the mother and spend overnight time with the father. By consent it was ordered that the mother have sole use of the matrimonial home.
In July 2019 orders were subsequently made by Rees J permitting the mother to travel overseas with the child in July/August 2019 subject to conditions, including that the mother pay the sum of $500,000 to her solicitors by way of security, that the child be made available for time with the father, and for a regime of spend time for the child with the father when he returned from overseas.
Following an interim defended hearing on 9 August 2019, Loughnan J made orders on 13 August 2019 granting the mother’s review application consolidating the Sydney proceedings with the Melbourne proceedings, and allowing the Melbourne proceedings to continue.
Thereafter the parties filed a series of amended initiating applications and responding applications seeking final orders, and the matter progressed to a first day trial management hearing on 2 December 2019. Trial orders were made that day and the matter was listed for a final hearing to commence on 7 May 2020 for a six days.
The final hearing was subsequently adjourned as a result of COVID-19 to 5 October 2020, and then by reason of the continuing uncertainty and difficulty surrounding travel between Melbourne and Sydney, was adjourned again to 9 March 2021. The trial finally began on 9 March 2021, and ran for 7 days. Closing submissions were filed by the father on 6 April 2021, numbering some 46 pages in length. Not to be outdone, on 26 April 2021 the mother filed some 74 pages of written submissions.
PROPOSALS OF THE PARTIES
In her final written submissions the mother proposes the following regime for the child’s time with the father during the school term on the basis that she be permitted to relocate to Melbourne:
(a)in week one in Melbourne, from after school Friday until the commencement of school Monday;
(b)in week two in Melbourne, from after school Friday until Saturday afternoon;
(c)in week three in Sydney, with the child to travel to Sydney on Friday afternoon/evening and return to Melbourne on Sunday after 5.00pm, with the mother to pay for the child’s costs of travel;
(d)in week four in Melbourne, from after school Friday until Saturday afternoon; and
(e)such other times by agreement when the child is in Sydney, or when the father is in Melbourne, including overnight time when the father is travelling, with the travelling parent to provide notice to the other of the visit.
For the purpose of the time between the child and the father in Melbourne, the orders propose that until the father purchases or leases a property in Melbourne, the mother will vacate and provide the father access to an apartment owned by the mother’s family at Suburb H (“the Suburb H apartment”) and that the father give her not less than 14 days’ notice of his need to occupy the Suburb H apartment.
The mother proposes that the father, with reasonable notice to her, be at liberty to elect to combine the time provided for in week two and week four, such that the child spend time with the father in Melbourne from after school Friday until Sunday evening or the commencement of school on the Monday morning in either week two or week four. She also proposes that the child remain in the father’s care for some additional time should the child already be in the father’s care on the weekends that fall on certain public holidays.
In relation to school holidays, the mother proposes that the child spend one half of the Victorian school term and long summer holidays with the father in Sydney, with the child’s travel costs to be shared equally. Should the parties disagree on the long summer holiday period, the mother proposes a spend time regime from 2021 through until 2026, by which stage the child would spend two weeks with the father, two weeks with the mother, and the remaining holiday period would be shared equally between the parties. The mother proposes orders for special occasions.
The mother also seeks an order that the child be removed from the Airport Watchlist. She otherwise proposes that the parties be at liberty to travel with the child overseas during such periods that the child is in their respective care and subject to providing notice, travel information, and travel contact details, and that she retain the child’s passport. Her proposed orders also provide that the child be enrolled and attend Z School, and for the usual ancillary orders.
In the alternative, if the Court does not accede to the mother’s primary position that she be permitted to relocate to Melbourne with the child, she proposes that the child live with her in Sydney and that he spend time with the father on a fortnightly basis as follows:
(a)in 2021, in week one from the conclusion of school Friday until the commencement of school Monday, and in week two from the conclusion of school Thursday until the commencement of school on Friday; and
(b)in 2022 and each year thereafter, in week one from the conclusion of school Thursday to the commencement of school Monday, and in week two from the conclusion of school Thursday to the commencement of school Friday.
It would seem, however, that the mother’s 2021 proposal was not put in place after the conclusion of the trial in March 2021 (see letter from the parties’ solicitors dated 7 December 2021).
The mother proposes the same spend time regime in relation to holidays as earlier mentioned, and she provides for special occasions.
It is the father’s primary proposal that the child remains living in Sydney with the mother, and that the child live with him as follows during school term:
(a)from the commencement of the 2021 school term until commencement of the 2022 school term, in week one and week three from after school Thursday until commencement of school Monday, and in week two and week four from after school Thursday until the commencement of school Friday;
(b)from the commencement of the 2022 school term until the commencement of the 2023 school term, in week one and week three from after school Wednesday until commencement of school Monday, and in week two and week four from after school Thursday until commencement of school Friday; and
(c)from the commencement of the 2023 school term onwards, in week one and week three from after school Monday until the commencement of school the following Monday.
Insofar as holidays are concerned, the father proposes that the child spend time with him for half of all the school term and long summer holidays and half of the Easter weekend should the Easter weekend not fall within the April school holidays. The father also provides for special occasions.
It is proposed by the father that the parties be restrained from changing the child’s place of residence from Sydney, that the parties be permitted to travel overseas with the child during such periods that the child is in their respective care subject to providing notice, travel information and travel contact details and that the mother provide the child’s passport to him to retain. His proposed orders require that the child continue to attend L School and that the child continue to attend his regular extra-curricular activities in Sydney. The father otherwise provides for the usual ancillary orders relating to changeover, telephone communication with the child, mutual non-denigration orders and the like.
In the alternative, if the Court accedes to the mother’s application that she be permitted to relocate to Melbourne with the child, the father proposes that the child live with the mother in Melbourne and spend time with him as follows during school term:
(a)in week one and week three, from after school Friday until 5.00pm Sunday with the mother to deliver and collect the child from the father’s home;
(b)for one additional weekend a month in Melbourne, at the father’s election, from Friday after school until 5.00pm Sunday with the father to collect the child; and
(c)for such other days that the father is in Melbourne, at his election, for no less than 3 hours on such day he chooses (if not staying overnight in Melbourne) and overnight for a maximum of three nights in each calendar week excluding weekends.
The father’s orders provide that he must give notice to the mother of not less than 48 hours should he wish to take up the option of being in Melbourne on the additional days set out above. They also provide that he have liberty to choose the hours, and that he can return the child to the mother earlier than proposed should his travel arrangements so require. Changeover during these times is to be at the child’s school or the mother’s home, or at the Melbourne Airport should the mother live more than 30 minutes from the Airport.
Insofar as holidays are concerned, the father proposes that the child spend time with him for the entirety of the April and October school holidays, for half of the July and December school holidays, and for half of the Easter weekend should the Easter weekend not fall within the April school holidays and should he be in the same city as the child for Easter. Changeover during the school holidays would occur at the Sydney airport. The father’s proposed orders also provide for special occasions, should the father be in Melbourne on those days. The father seeks orders that the child attend Z School, and he otherwise seeks ancillary orders in the terms that would pertain if relocation was not permitted.
MATERIAL RELIED ON
According to her case outline, the mother relies upon the following material:
(a)Further Further Amended Initiating Application filed 5 March 2020;
(b)Affidavit of the mother filed 5 March 2020;
(c)Financial Statement of the mother filed 5 March 2020;
(d)Affidavit of Mr A Portelli filed 5 March 2020;
(e)Affidavit of Ms B Portelli filed 5 March 2020;
(f)Affidavit of Mr C Portelli filed 5 March 2020;
(g)Affidavit of Ms AA filed 5 March 2020;
(h)Affidavit of Ms BB filed 5 March 2020;
(i)Affidavit of Mr CC filed 5 March 2020;
(j)Affidavit of Mr DD filed 5 March 2020;
(k)Affidavit of Mr EE filed 5 March 2020;
(l)Affidavit of Ms FF filed 5 March 2020;
(m)Affidavit of Dr GG filed 5 March 2020;
(n)Affidavit of Ms HH filed 5 March 2020;
(o)Affidavit of Ms HH filed 1 May 2020;
(p)Affidavit of Mr JJ filed 5 March 2020;
(q)Affidavit of Professor KK filed 5 March 2020;
(r)Affidavit of Dr LL filed 5 March 2020;
(s)Affidavit of the mother filed 12 June 2020;
(t)Affidavit of Ms MM filed 9 February 2021;
(u)Affidavit of Professor KK filed 22 February 2021;
(v)Outline of case filed 22 February 2021;
(w)Affidavit of the mother filed 3 March 2021;
(x)Written submissions filed 26 April 2021;
(y)Notice to Admit Facts dated 5 February 2020; and
(z)Exhibits tendered at trial.
According to his case outline the father relied upon the following material:
(a)Affidavit of Dr NN filed 29 November 2019 annexing family report;
(b)Amended Response to Initiating Application filed 13 December 2019;
(c)Notice to Admit Facts dated 16 January 2020;
(d)Affidavit of Dr NN filed 5 February 2020 including accompanying annexures;
(e)Notice Disputing Facts dated 19 February 2020;
(f)Affidavit of Ms D Wymer filed 27 April 2020 including accompanying annexures;
(g)Affidavit of Mr E Wymer filed 27 April 2020 including accompanying annexures;
(h)Affidavit of Mr F Wymer filed 27 April 2020;
(i)Affidavit of Ms H Wymer filed 27 April 2020;
(j)Affidavit of Mr OO filed 27 April 2020;
(k)Affidavit of Ms PP filed 27 April 2020;
(l)Financial Statement of the father filed 8 May 2020;
(m)Trial Affidavit of the father filed 8 May 2020 including accompanying annexures;
(n)Notice to Admit Facts dated 6 August 2020;
(o)Affidavit of the father filed 1 September 2020;
(p)Affidavit of Mr E Wymer filed 1 September 2020;
(q)Affidavit of the father filed 2 February 2021;
(r)Outline of case filed 22 February 2021; and
(s)Written submissions filed 6 April 2021.

Although not all of this material is explicitly mentioned in the balance of these reasons for judgment, it has been the subject of review and consideration as relevant by the Court.
THE STATUTORY REGIME AND RELEVANT PRINCIPLES
Best Interests: Objects, Principles and Considerations
Part VII of the Act is concerned with children. It sets out the objects, principles and matters that must be considered when determining what parenting order is proper. In proceedings for a parenting order the Court may, subject to s 61DA (the presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Div 6 of Pt VII, make such parenting orders as it thinks proper: s 65D(1).
A “parenting order” is defined in s 64B of the Act and may deal with matters including with whom a child is to live, the time a child is to spend with another person, and the allocation of parental responsibility for a child. The paramount consideration when making a parenting order is the best interests of the child or children the subject of the proceedings: s 60CA of the Act.
Section 60B(1) of the Act sets out the objects of Pt VII, which are to ensure that the best interests of children are met by:
(a)ensuring that children 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; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s 60B(2) of the Act. They are that, unless it would be contrary to the best interests of a child:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Ascertaining the best interests of a child by reference to the Act’s mandatory considerations must recognise that, as the High Court observed in CDJ v VAJ (1998) 197 CLR 172 at 219, [152]:
It is a mistake to think that there is always only one right answer to the question of what the best interest of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [1985] FLR 894 at 897-898, Lord Fraser of Tullybelton pointed out:
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.
Section 60CC(2) and (3) of the Act set out the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. Section 60CC(2)(a) provides that a primary consideration will be the benefit to the child of having a meaningful relationship with both of the child’s parents. However the effect of s 60CC(2A) is that the Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)), considerations which are not relevant in the present case. Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order.
When determining what is in the best interests of the child the relevance of the primary and additional considerations and the weight to be given to them will depend upon the particular circumstances of each case: Poisat & Poisat (2014) FLC 93-597 at [34]. As to the manner in which the Court is to take those considerations into account, in Donnell & Dovey (2010) FLC 93-428 the Full Court of the Family Court said that the considerations may be seen as “…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion” (at [103]). In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed at [76]-[77] as follows:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Original emphasis)
As the High Court emphasised in U v U (2002) 211 CLR 238 (“U v U”), the Court’s power in making a parenting order is to make orders it considers to be in a child’s best interests and it is not bound by the parties’ proposals (see Gummow and Callinan JJ at [80], with whom Gleeson CJ at [1], McHugh J at [44], and Hayne J at [169]-[171] agreed).
Parental Responsibility and Spend Time Arrangements
Subject to the Court making an order changing the statutory conferral of joint parental responsibility, s 61C of the Act provides that each of the parents of a child who is not 18 years old has parental responsibility for the child. The occasion to make an order changing the statutory conferral of joint parental responsibility does not arise in this case because the parties agree that they should continue to share parental responsibility, consistently with the statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. Nor is there any suggestion that there would be any basis for the rebuttal of this statutory presumption.
Section 65DAC is concerned with the sharing of parental responsibility. Where a parenting order provides that there is to be a sharing of parental responsibility and the exercise of that parental responsibility will involve making a decision about major long-term issues in relation to the child, the order is taken to require the decision to be made jointly: s 65DAC(2). Thus, the persons making the decision will need to consult one another in relation to the decision to be made, and make a genuine effort to come to a joint decision about that issue.
Where the Court makes an order for equal shared parental responsibility, as here, the Court is required to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with both parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practicable for the child to spend “substantial and significant time” with each of the parents (s 65DAA(2)).
These principles have been the subject of careful examination in Goode & Goode (2006) FLC 93-286 (“Goode & Goode”) and MRR v GR (2010) 240 CLR 461. As the Full Court explained in Goode & Goode (at [72]), there is now a clear legislative intent in favour of substantial involvement of both parents in the lives of their children. This is so in relation to parental responsibility as well as to time spent with the children. Such principles are applicable in all parenting cases, including those in which a proposed relocation is in issue.
Approach to be Adopted in Relocation Cases
Obviously enough, the proposed relocation of a child’s residence highlights a conflict between the best interests of the child to know and have regular interaction with each parent and the interests of parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the child (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210).
In Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn & Franklyn”) (Watts, Austin and Rees JJ), the Full Court observed:
[27] There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children. […]
[28] While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (references omitted) Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) (2007) FLC 93-350; Zanda v Zanda (2014) FLC 93-607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
As both parties here accept, it is well settled that cases involving an application by one parent to relocate the child’s residence to another geographical area, whether overseas or within Australia, are not in a separate class of parenting cases and must be decided by application of the same legislative framework as other parenting cases: AMS v AIF at [92], [191]; U v U at [37]; Bolitho & Cohen (2005) FLC 93-224 at [72]; Taylor & Barker (2007) FLC 93-345 at [53] (“Taylor & Barker”); Franklyn & Franklyn, Asher & Wilkinson (2020) 61 Fam LR 523 at [39].
In Taylor & Barker the Full Court (Bryant CJ and Finn J) confirmed (at [53]) that the preferred approach to the proposed relocation of a child which involved a significant change in the geographical place where the child is to live should be to deal with that change as just one of the proposals for the child’s future living arrangements, rather than as a discrete issue. Their Honours also held (at [60]) that a relocation proposal should be considered and evaluated not only in the context of findings about what is in the children’s best interests under s 60CC of the Act, but also in the context of s 65DAA of the Act, which mandates consideration of the children spending equal, or alternatively substantial and significant, time with the other parent in the event of allocation of equal shared parental responsibility. To be consistent with the statutory regime as it now stands, the Full Court recognised (at [81]-[83] and [119]) that the Court must balance the advantages and disadvantages of the relocation proposal with the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. However it was observed (at [81]) that the Court must first give separate and real consideration to the options of “equal time” and “substantial and significant time”, without regard to the relocation proposal.
It must be emphasised that the parent wishing to relocate bears no onus of establishing “good” or “compelling” reasons to do so, and it must not be assumed that this parent must subordinate her or his wish to relocate to the desires of the other parent to remain wherever they are: U v U at 261, 285-286. As Gaudron J observed in U & U at [36]-[37], it is essential in relocation cases that each competing proposal be separately evaluated. Nonetheless, the focus of the Court must be on how a child would be affected to their detriment or their benefit by the parties’ separate proposals. As Hayne J noted in AMS v AIF:
216.An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218.To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reason and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child – to be in the custody of the father … or to be in the custody of the mother … That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody …
Needless to say, while there is no specific principle or procedure to be applied in relocation cases, other than the usual approach mandated by the legislative framework in Pt VII of the Act, the tyranny of distance may be expected to reduce the options available to the parties. In Zahawi & Rayne [2016] FamCAFC 90 the Full Court gave expression to this reality in terms that are apposite to the present cases as follows:
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)
I approach the determination of the issues presented by this case by reference to the statutory regime and the relevant principles here set out.
THE EVIDENCE
It should be observed that pursuant to s 140(1) of the Evidence Act 1995 (Cth) the standard of proof that is to be applied is the balance of probabilities. Section 140(2) provides that in applying that standard the Court must have regard to the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. As I have indicated, I have had regard to the documents on which the parties have relied and the exhibits tendered. I have also had the benefit of observing the appearance and demeanour of the parties and their witnesses when they gave evidence.
The mother gave evidence on the first day of the trial until early afternoon on the second day. Her witnesses then gave evidence as follows:
(a)the CEO of O Company, Mr EE;
(b)the mother’s friend, Ms AA;
(c)the mother’s step-mother, Ms B Portelli;
(d)the mother’s half-brother, Mr C Portelli;
(e)the mother’s general practitioner, Dr GG (via Microsoft Teams);
(f)the mother’s psychologist, Ms HH (via Microsoft Teams);
(g)the Chair of O Company, Mr CC;
(h)the CEO of P Company, Mr DD;
(i)the mother’s friend, Ms BB; and
(j)the maternal grandmother, Ms MM.
The father gave evidence from the fourth to the sixth day of the trial. His witnesses gave evidence in the balance of day six and were as follows:
(a)the father’s treating social worker, Ms PP;
(b)the paternal grandmother, Ms D Wymer;
(c)the paternal grandfather, Mr E Wymer; and
(d)the paternal uncle, Mr F Wymer.
The family report writer, Dr NN, gave evidence on day seven of the trial.
There is limited utility in setting out, at length, the evidence given by all the witnesses called by the parties over the seven days of the trial. Significant parts of the evidence, particularly that surrounding the father’s affair, aspects of which consumed an inordinate amount of time in cross examination, was more in the nature of largely irrelevant background than expositive of critically relevant disputes about factual matters which must be resolved one way or the other in order to determine what parenting orders are in the best interests of the child. It is, however, desirable to refer to certain aspects of the evidence, and the parties’ competing submissions about them, insofar as this is relevant to the issues which must be determined. Those issues for determination, and hence the evidence in relation to those issues, are as follows.
First, and fundamentally having regard to the parties’ agreement that they should share parental responsibility, is the question of whether it is in the child’s best interests and reasonably practicable for him to spend equal time, or alternatively substantial and significant time, with each of the parents. Evidence about how this would work, whether in Sydney or in Melbourne, and in particular whether it would be feasible for the child to have equal time with the parties if the child remains in Sydney bearing in mind the father’s work commitments and his emotional attunement to the child, is relevant in this regard.
Then of course there is the mother’s relocation proposal. Evidence on the subject of whether relocation by her and the child to Melbourne would undermine and impede the development of the child’s relationship with his father requires careful consideration. Also centrally relevant to the mother’s relocation proposal are her reasons for wishing to relocate. This involves consideration of the evidence about her career as a director of her family’s companies, and whether a move to Melbourne is necessary to advance her career. Also relevant in this regard is evidence of the mother’s support networks in Melbourne, and the impact that remaining in Sydney and not relocating to Melbourne might have on her mental health.

However before turning to the evidence in relation to these matters it is desirable to say something about the parties themselves. Save for the father’s evidence in relation to his affair, to which I will come, it was generally my impression that the parties attempted to give their evidence truthfully, albeit generally with at least an eye to what they thought would best suit their case. As might be expected they both had a tendency to see things from their own perspective, and I formed the impression that both lacked insight into how particular actions or events might have been perceived by the other.
As has been mentioned, there was considerable attention devoted in cross examination of the father to the subject of his affair. The mother submits that the fact of the affair is relevant to the proceedings in two primary ways. First, she says it goes strongly to the father’s credit and that it should cause the Court to approach all of the father’s evidence with extreme caution. In this respect the mother points to the fact that the father misled her, Dr QQ (the father’s therapist), and the Court in relation to the affair.
The father conceded during cross examination that he mislead the mother and was evasive about the affair with the family report writer. Notes produced on subpoena make clear and I accept that the father did not tell the truth about the nature of his other relationship to Dr QQ, describing it as a friendship and describing the mother as “paranoid” in relation to the matter. I also accept that the father’s affidavit material in relation to the affair was misleading. In cross examination the father ultimately conceded that he was having an affair from at least September 2016, however this is inconsistent with his sworn evidence in his 27 and 29 March 2019 affidavits. Despite the father’s attempts during cross examination to redefine the term ‘affair’, and explain away this inconsistency, I accept that his evidence in relation to the affair has been misleading and that, to some degree, this does impact on his credit.
The mother also submits that the fact of the father’s affair is a matter that should give the Court “some insight into the father’s lack of emotional development and empathy for others, and in particular, lack of empathy for the emotional wellbeing of [the child’s] primary care giver”. She points in particular to the observations of the family report writer, notably about the father’s lack of empathy and emotional attunement to the mother, that the report writer found him to be “self-absorbed”, and his ongoing evasiveness about his affair which left the report writer “with a question mark about his capacity to tune into [the child] at an emotional level…”.
In my assessment, however, the affair itself and the father’s attempts to disguise it are not as significant to the matters which fall for determination in this proceeding as the emphasis placed on the affair at trial might have suggested. While the father’s behaviour in commencing and conducting the affair, particularly at a time when the mother was experiencing post-natal depression, may be thought to speak to his qualities as a partner at the relevant time, ultimately the fact that someone has an affair does not make them incapable of parenting a child. At most the fact of the affair, in the circumstances, might be thought to be consistent with the evidence about the father’s emotional capacity, a matter to which it will be necessary to come in relation to whether a shared care arrangement in Sydney would be appropriate.
It must also be acknowledged, however, that there have been aspects of the mother’s conduct which may fairly be the subject of criticism. Her propensity to remove the child summarily and without warning from Sydney to Melbourne on certain occasions when she objected to behaviour of the father was not child-focused and has given me cause for concern about the strength of her commitment to the child having a meaningful relationship with his father.
Insofar as the evidence of the other witnesses is concerned, it is unnecessary to pass any particular comment at a level of generality on them. They gave the evidence they gave, and where that evidence is of particular relevance I will refer to it below.
I turn now to the relevant evidence in relation to the critical matters for determination.
Is “Equal Time”, or “Substantial and Significant Time”, in the Child’s Best Interests and Reasonably Practicable?
At present the child spends substantial and significant time with each of his parents in Sydney. The father says that in the event relocation is not allowed, arrangements for the child’s care should move gradually to equal time. A week and week about regime is ultimately the position for which he contends. He says that this would be in the child’s best interests and that it would be reasonably practicable. However the mother says that regardless of whether she and the child relocate to Melbourne or remain in Sydney, equal time would not be in the child’s best interests or practicable. Clearly if the mother and the child were to relocate, an equal time arrangement would not be reasonably practicable. But even if they remain in Sydney, the mother maintains that the father is not sufficiently available for the child having regard to his work commitments, and that he lacks the emotional maturity to care for the child on an equal time basis. The mother accepts, however, that a movement towards a 9:5 care arrangement in Sydney would be in the child’s best interests and practicable if there were not to be a relocation.
As the father correctly submits, determination of whether equal time or substantial and significant time is reasonably practicable is circumscribed by a number of statutory factors, including geographic distance, capacity to implement the relevant arrangements, the capacity of the parents to communicate with one another, the impact on the child, and any other relevant matter. In support of his contention that there should be a movement to equal time, the father points to the fact that the child presently spends substantial and significant time with him. He says that on his case the mother would remain living in the Suburb K property and he at his home in Suburb N, and that both of these residences are proximate to the child’s school. Importantly, he contends that although his work commitments are significant and require him to by present physically at the branches, he can structure his work commitments around the child’s life “to some degree”.
However as the father himself observes in his closing submissions, it is easy for a party to make such representations, and have such lofty intentions, when the reality moving forward may not be so straightforward. Although I accept that the father and the child have an established and loving relationship, for reasons I will explain I am not satisfied that it would be in the best interests of the child to spend equal time with the father or that it would be reasonably practicable for him to do so. Simply put I do not consider that the father would be sufficiently available for the child, practically and emotionally, for an equal time arrangement to be in the child’s best interests or reasonably practicable.
Although it may be the case that the father has been able to cope with his more limited care responsibilities in recent years, the existing arrangements are a far cry from what would be required of him in the event that the parties were to share equally the care of the child. Having regard to what are apparently the father’s very onerous professional obligations, I hold a significant concern that the intensity of his working life would impede his ability to devote the requisite time to the care of the child. The evidence discloses that the father has significant work commitments, often working long hours, including on weekends, and that his work requires him to be present at the branches every day. Indeed, it was suggested that it would be detrimental to the business if the father was not on hand on a daily basis. The father also conceded that he has a daily meeting between 5.00pm and 6.00pm which he has previously said he cannot reorganise in order to speak to the child on the telephone at a time more suitable to the child’s schedule.
I accept, as the mother submits, that the uncontested evidence about the father’s busy professional life is inconsistent with his evidence in cross examination that he could regularly cease work early, arrive at work late, or even work part time. Although there is some evidence that the paternal family may be available to assist, I am not convinced that this would be adequate to bear the significant burden that an equal time arrangement would place on the father, or that this would be an entirely satisfactory solution if it transpires that the father is unable to fulfil the day to day obligations that an equal shared arrangement would inevitably impose on him. As the mother submits, what the father says he can do entails a leap of faith and trust by the Court. I consider that there is not a proper basis to accept that the father will be able to do what he says he will do on a long term basis.
In any event, it must also be recognised that, so far, the child has prospered in the primary care of his mother. I regard this also as a consideration which tilts in favour of the mother retaining the primary care of the child and against the child having equal time with the parties. This is supported by Dr NN, who says that in his opinion there is no reason to change the child’s primary residence with the mother and that it would not be in the child’s best interests to do so. Dr NN expressed the view, which I accept, that the mother has a “comprehensive and intuitive grasp of parenting”. By contrast, he was not confident that the father would be proficient parenting the child on a week about basis. Dr NN said as follows on this point at page 31 of the family report:
My main reservation about his [the father’s] parenting is that I think that he is quite a self-absorbed person and that one area of vulnerability for him as a parent will be when [the child] starts to become more of a person in his own right and starts to assert himself. I am concerned that [the father] will not cope with this as well as he might in the sense that he will either withdraw from [the child] or he will get into unnecessary conflicts with him. That said however, it is not my view that this should be a basis for any significant restriction on his time with [the child]. I think it is an issue with which he and [the child] are going to need to grapple, but probably not for another decade. In the meantime, I think he will probably be quite a good parent on a day to day basis. However I am concerned that his limited capacity for intuitive empathy and emotional attunement means that his strong points will lie in more external activities whereas I think his patience will be tested if he carries too large a burden of day to day routines. That is, I think that he would be less proficient parenting [the child] on a week about basis which would entail a deeper level to their relationship than he would be [sic] on the basis of an arrangement which spared him a significant amount of the day to day routine during the week. I think that he would manage some part of that routine, but not to the level of week about.
At page 33 of his report Dr NN also expressed disquiet about how the child would himself cope with a week about arrangement, suggesting that he would find it confusing and disorientating and that it may lead to more clingy behaviour and seep disturbance.
Dr NN also expressed doubts that the parties would be able to communicate and cooperate sufficiently well for a week about arrangement to be practicable. The mother shares this concern, pointing to instances where telephone call times and swimming arrangements caused undue angst, and travel to Melbourne to visit the mother’s family was met with the imposition of unrealistic conditions by the father. Although there is some evidence that the parties have been able to co-parent effectively in more recent times, in light of the mother’s profound mistrust of the father, occasioned it would seem by his affair, and the general state of disharmony between them, I also share Dr NN’s concerns in this regard. It is clear that the parties’ relations remain extremely strained. Their progress since separation to this point has been highly, and no doubt unnecessarily, adversarial.
Although the father submits that Dr NN’s views in relation to these matters are somewhat dated, having regard to all of the evidence I am prepared to accept Dr NN’s observations that equal shared time would not be in the child’s best interests. As well as the issue of the father’s availability, practically and emotionally, I am not at all confident that the parties have the cooperative relationship which would be necessary for them to implement an arrangement whereby the child has equal time with the two of them: see s 65DAA(5) of the Act. I do not consider that such an arrangement would be reasonably practicable, even in the absence of relocation. In my assessment the evidence is that the father would not be up to the task of an equal shared parenting arrangement and the relationship between the parties is not adequate for it to succeed.
I do accept, however, that it would be in the child’s best interests and reasonably practicable for him to continue to have substantial and significant time with the father, if the parties remain in Sydney. Indeed, having regard to all of the evidence an arrangement where the child does have substantial and significant time with his father seems to me to be manifestly in the child’s best interests. The mother accepts that this is possible in Sydney, ultimately on a 9:5 basis, and such an arrangement would have her support if relocation is not permitted. Dr NN seems also to regard a 9:5 arrangement in Sydney as appropriate if there was to be no relocation. The father lives sufficiently close to the mother in Sydney for such an arrangement to work if there is no relocation, and I accept that despite the distrust between them the parties’ ability to communicate with one another is probably now adequate to make such an arrangement work. Although the father’s professional responsibilities are significant, I accept that he would be able to organise himself to make this level of commitment to the child. It is clear that he very much wishes to do so.
In the event that there were to be a relocation the position in relation to substantial and significant time is more difficult. The mother submits that this could still occur on her proposal, if only the father were to exercise some of the flexibility that he says he has. However the father submits that if there were to be a relocation, orders for the child to spend substantial and significant time (as to which see s 65DAA(3)) with each of his parents would not be reasonably practicable even if such orders were in the child’s best interests (as they are). Perhaps, as the mother submits, if the father exercises some of the additional time with the child in Melbourne that her proposal would allow it may be that substantial and significant time would be possible in Melbourne. However in my view it would be on the outer edge of the definition of that concept in s 65DAA(3) of the Act.
Bearing these matters in mind I turn now to the proposed relocation.
The Impact of Relocation on the Child’s Relationship with the Father
There was no real debate between the parties that they are both good parents and that the child presently enjoys secure attachments and meaningful relationships with each of them. Dr NN accepted that this was the position. Indeed, Dr NN said in cross examination that in his view the father was “somewhere between a good and a very good dad”. Self-evidently, and as Dr NN also accepted, the mother is a very good mother. The child is thriving, and she has been his principal carer since birth.
The key divergence between the parties however is whether the meaningful relationship between the child and the father can continue if the child relocates with the mother to Melbourne. The mother contends that it will be able to continue; the father maintains that his relationship with the child will be diminished both from a qualitative and quantitative perspective should relocation be permitted.
The mother emphasises that relevant authorities establish that the Act is concerned with promoting a meaningful relationship, not an optimal one: M & S (2006) FLC 93-313 (“M & S”); Godfrey & Sanders (2007) 208 FLR 287 per Kay J at [33]-[36]; and Sigley & Evor (2011) 44 Fam LR 439 at [182]-[183]; see also Mazorski & Albright (2007) 37 Fam LR 518 at [26] (Brown J); McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at [118]-[122]. She submits that less frequent face-to-face contact which may occur due to distance does not in itself mean that the relationship between the father and the child will cease to be meaningful: M & S at [45]; and that whatever the order in this case the child will continue to have a meaningful relationship with both parents. It is noteworthy, however, that the mother’s submissions do not rise much beyond an assertion, untethered to the evidence, that the child would continue to have a meaningful relationship with his father for the next 12 years of his childhood if he relocated to Melbourne (see mother’s closing submissions, paragraphs 120-123).
I accept that, at least in the abstract, there can be a meaningful relationship between a parent and a child even in circumstances where they live in different cities and spend only weekend time and holiday time together. In the circumstances of this case, however, I am not at all confident that the relationship between the child and the father could avoid being significantly compromised were relocation broadly on the terms the mother proposes to occur. I have formed this view, assessing things prospectively, by reference to the following matters.
First, whatever the position may have been when the child was a baby, I am satisfied that in more recent years the father has been actively engaged in the child’s daily life. As the father submits, the particulars and tenor of his evidence demonstrate a significant involvement in the child’s life. I do not accept the mother’s evidence that his involvement in the child’s life since 2017 has been strategic, and calculated to place himself in a better position should a separation occur. Whether or not, as the father contends, he was committed to working on the marriage in 2017, I am at least prepared to accept that since then he has tried to be more available to the child. It is no doubt on the basis of this that the child has come to experience a father who is well acquainted with his routine and well integrated into it. The father parents the child in a capable fashion. From the child’s perspective, particularly having regard to his psycho-social development, it is important that this be able to continue.
Secondly, I am satisfied on the evidence that were the child to relocate to Melbourne his relationship with the father would assume a rather different complexion. The father’s ability to be involved in his extra-curricular and school-based activities would be reduced, particularly insofar as mid-week activities are concerned. The child’s time with the father, when in Sydney, would be accompanied by a significant travel burden and would inevitably have a transient quality to it. Dr NN expressed serious concerns about this in the family report. Also, when the child is with the father in Melbourne there would likely be an artificial quality to their time together, whether it were to be based at the Suburb H apartment owned by the mother’s family, or at some separate accommodation procured by the father or his family. The reality is that the child would likely not feel as though he had his own space in the father’s home in the way that he would if he was himself living in Sydney and spending time with the father in Sydney. I accept also that as the child grows up, and his activities and friendships devolve away from his family, he would almost inevitably become resistant to spending time in Sydney with his father, away from what would be by then his established networks in Melbourne.

The father, while accepting that the mother continues to experience depression and anxiety, submits that her mental health issues do not impact on her ability to parent the child effectively. He points to the mother’s evidence, which is supported by her treating practitioners, that while her own mental health has been affected by the separation and these proceedings, this has never impacted on her ability to care for the child. Dr NN expressed a similar view in the family report. The father refers also to the evidence of Ms HH who suggested that the mother’s extremely severe stress and anxiety were partly a product of these proceedings and would reduce at some extent once the proceedings concluded. The father notes that both the mother’s treating practitioners have indicated that they will continue to provide support to her should she remain in Sydney.
The father also points to the mother’s friends in Sydney, and says that if she remains in Sydney she will continue to make friends in that city. He mentions some elderly neighbours who are authorised to collect the child from school; Ms TT; a person who has been the child’s babysitter; as well as various others, including people who appear to be service providers to the mother.
The father submits that the highest the mother can put her case is that her mental health will be maximised should she be permitted to relocate to Melbourne, and that neither of her treating practitioners gave evidence that supported the proposition that her ability to care for the child would be significantly impaired if the relocation were not to be allowed.
Whatever be the position about the mother’s networks in Sydney, and whether these networks have been created out of necessity or otherwise, it was apparent from the mother’s demeanour in cross examination and otherwise during the trial that she is a confident and socially competent person. The mother appears to have some friends in Sydney, and although her support networks in Melbourne may be stronger I am not satisfied that they are necessarily as extensive as she suggests, or that she will be unsupported if she remains in Sydney. I also incline to the view that whatever monitoring by the parties of one another has occurred in the past is unlikely to be a feature of their relationship once the hostility of the litigation has concluded and arrangements are put in place going forward.
It is clear that dismissal of the mother’s relocation application will do nothing to improve her emotional equilibrium, and I accept that she will be very disappointed if she cannot realise her strong desire to relocate with the child to Melbourne. This is of course understandable and lamentable, but in the present case I do not accept that these considerations trump the best interests of the child in remaining in his established life and routine in Sydney and spending substantial and significant time with his father in Sydney. As the mother accepts, her ability to parent the child effectively has not been adversely affected by her depression and anxiety. Indeed, it is clear that she has done a very good job as the child’s primary carer in the vital early years of his life.
Taking all the evidence of the mother’s compromised mental health into account, including her own evidence on the subject, I do not consider that she has proven that her parenting capacity would be appreciably diminished if she were to remain in Sydney (as to which see McCall & Clark at [84], [131]-[135]; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]). In my assessment the evidence falls short of establishing on the balance of probabilities that that she is so likely to regress in her emotional functioning that her ability to continue to care for the child would be significantly affected. There is really no evidence about the manner in which her parenting capacity would be diminished, no evidence to quantify any such diminution, and no evidence about how long any such diminution might subsist. The highest it rises is that Dr GG and Ms HH would have concerns about the mother’s mental health if her relocation application is denied. Important as the mother’s mental health undoubtedly is, ultimately it is the advantages and disadvantages of the proposed relocation to the child, not the parents, which are relevant (see McCall & Clark at [88]).
Furthermore, I accept that whatever negative impact remaining in Sydney has on the mother’s mental health going forward, this can be mitigated with the assistance of her treating practitioners and the other existing supports which she has in Sydney. It seems that the mother enjoys a positive and effective therapeutic relationship with her treating practitioners, and that she is not devoid of other friendship and social support in Sydney. Sydney has, after all, been her home for the last 15 years and this reality must be borne steadily in mind. I do not accept that the mother’s situation is entirely comparable to that which existed in Babcock & Waddell [2018] FamCA 276 at [457], to which the mother referred in her closing submissions.
I also regard as relevant the fact that it is clear that the mother can and will make frequent trips to Melbourne, and that she will be able to continue to see her Melbourne-based family and friends in this way, and of course when she travels with them. It was apparent on the evidence that the mother and the child travel frequently with the mother’s paternal family, both in Australia and overseas, including on her father’s luxury yacht and private aeroplane. There appears to be very little in the way of financial constraints. Although the mother would obviously far prefer not to remain in Sydney, the evidence is not at all that she will be marooned there, effectively cut off from her family and friends in Melbourne.
In light of my findings in relation to these critical matters I turn now to the statutory framework on the basis of which parenting orders will be made.
DETERMINATION OF THE BEST INTERESTS OF THE CHILD
Primary Considerations
Plainly, abuse, neglect or family violence is not a feature of this case, meaning that it is unnecessary to consider s 60CC(2)(b) of the Act. The only relevant primary consideration is the benefit to the child of having a meaningful relationship with both of his parents: s 60CC(2)(a). As will be apparent from my consideration of the relevant evidence above, and for the reasons I there give, the child should have substantial and significant time with the father in Sydney. I do not consider that the relocation of the child to Melbourne, as the mother proposes, would be consistent with the maintenance of the meaningful relationship which the child presently enjoys with his father. In my assessment the child’s interests are best served by the maintenance of his existing relationship, progressing to additional time on a 9:5 basis, with his father in Sydney. I am satisfied, for the purposes of s 65DAA of the Act, that such a regime is reasonably practicable.
Although this consideration would be sufficient foundation for the parenting orders to be made in this case, for completeness, and having regard to the parties’ extensive submissions on these further matters, I turn to consider the additional considerations in s 60CC(3) of the Act.
Additional Considerations
Neither party submits that s60CC(3)(a), (g), (h), (j), (k) or (l) are of relevance. This is correct, and it is unnecessary to consider these matters.
As to the additional considerations which may be relevant, none of them cause me to form a different view in relation to the mother’s relocation proposal that I have formed having regard to the primary consideration in s 60CC(2)(a) of the Act.
Insofar as s 60CC(3)(b) is concerned, although there was considerable evidence given about the nature of the child’s relationship with both parents, and with the maternal and paternal families, in the end I accept that the child has a healthy and functioning relationship with both sides of his family. This will no doubt continue whether he lives in Sydney or relocates to Melbourne. No doubt the child’s paternal family will have more opportunities on a day to day basis to develop their relationship with the child if he remains in Sydney than if he were to relocate to Melbourne, and the maternal family correspondingly fewer opportunities. But this is true in many family situations where parents live in a different State or country to their own parents. In any event, it is apparent on the evidence that the mother and the child travel frequently to visit the maternal family in Melbourne, and holiday with them elsewhere in Australia and abroad. There is no impediment to them continuing to do so. Having regard to all these matters I am not unduly concerned that the child’s relationships with his parents and other relevant persons will be impeded if he stays in Sydney. However as I have said, my concern about the maintenance of the child’s relationship with his father is critical. It causes me to conclude that relocation to Melbourne would not be in the child’s best interests.
Turning then to s 60CC(3)(c), while it may be that the father has not availed himself of the opportunity to be centrally involved in the child’s life in the way that the mother has, it is also clear that the mother has not always provided a level of encouragement that would have facilitated this. Her various moves to Melbourne with the child at times of stress in the relationship are obvious examples of this. Insofar as the father has not availed himself of opportunities to participate fully in the child’s life for reasons unrelated to the actions of the mother, in the overall scheme of things I do not consider that his conduct in this regard would provide a basis to disturb the conclusion I have reached having regard to s 60CC(2)(a) of the Act.
Insofar as s 60CC(3)(c)(a) is concerned, it is not apparent that either party has failed to fulfil their obligations to maintain the child. In any event, only the father raises this consideration in his final submissions. He rejects any assertion by the mother that he has not provided her with adequate financial support in relation to the child, outlining that he has to date provided periodic child support as assessed in addition to paying for the child’s school fees, private health insurance and half of extra-curricular costs. Although there had been some controversy about this originally, the mother’s Child Support Departure Application was resolved by consent after the trial. It would seem therefore that whatever historical allegations made by the mother in relation to what she may have said was an inadequate level of financial support provided by the father are no longer in issue. Consideration of this sub-section does not affect the conclusion I have reached about the desirability of the child spending substantial and significant time in Sydney with his father and the undesirability of a relocation to Melbourne.
Section 60CC(3)(d), and the effect of any changes in the child’s circumstances, is clearly a factor which tends in favour of him remaining in Sydney and continuing to have substantial and significant time with his father. As has been said, the child has spent his life living primarily in Sydney. He is presumably about to go into grade one, and he has been at his school since kindergarten. His paternal family is in Sydney, including both of his paternal grandparents who I accept have a functioning relationship with him. He has an uncle and two cousins, one roughly his own age. It is no real answer to say, as the mother submits, that the child will adjust to a new life in Melbourne, bearing in mind that the father now says he can spend additional time in Melbourne in the event of relocation. In my assessment a move to Melbourne and away from substantial and significant time with his father in Sydney would be undesirable having regard to the additional considerations in s 60CC(3)(d) of the Act.
Insofar as s 60CC(3)(e) is concerned, it is plain that I regard the practical difficulties of the child maintaining his relationship with his father, now and into the future, as the key reason that the child’s best interests would not be served by relocation to Melbourne. The mother does not advance any cogent submission that s 60CC(3)(e) considerations could produce any different result.
Section 60CC(3)(f) focuses attention on the parties’ capacity, as well as the capacity of other relevant persons, to provide for the child’s needs, including his emotional and intellectual needs. The mother submits that the father has a limited capacity for intuitive empathy and emotional attunement. She is highly critical of him, particularly in relation to his affair. There is perhaps some basis for her criticisms, at least insofar as the mother herself is concerned. However relationships are complex things. It is notoriously difficult to make judgments from the outside looking in at why people may have acted in the way they did, particularly in relation to extra-marital affairs. And of course it is no business of this Court, applying the provisions of the Act, to attribute fault or blame. While there may have been aspects of the father’s behaviour qua husband which have been wanting, and his level of emotional attunement with the child would not support an equal shared care arrangement, I am less concerned about this as an issue on the basis that the parties move to a 9:5 care arrangement. Also, the child is still young and the last few years have been dominated by this litigation. No doubt the father has not yet had the time and space even to attempt to develop a relationship with the child which could have a greater degree of emotional attunement. In any event, whatever be the position I do not regard the considerations mandated by s 60CC(3)(f) as apt to disturb the conclusion I have reached as to the appropriate parenting orders to be made having regard to s 60CC(2)(a) of the Act.
Insofar as 60CC(3)(i) is concerned, although the mother says nothing about this consideration the father raises the question of whether the mother can be an appropriate gatekeeper of the relationship between him and the child in the context of this sub-section. I have addressed this issue above, and I have indicated that I have some concerns about it. The considerations required to be taken into account by s 60CC(3)(i) are confirmatory of my view that the child’s best interests require him to remain in Sydney where his positive relationship with his father can continue to develop free from the stresses and strains of frequent travel between Melbourne and Sydney.
Turning finally to s 60CC(3)(m), any other fact or circumstance the Court thinks relevant, the mother submits that her right to freedom of movement and to live her life as she pleases, including with respect to her career and her emotional equilibrium, should be considered under this sub-section. I have addressed these submissions above. Recognising the existence of the mothers right in this respect, and giving them anxious consideration, for the reasons I have expressed I have concluded that these rights must give way to the child’s interests in maintaining his established life in Sydney and spending substantial and significant time with his father in Sydney.
CONCLUSION AND ORDERS
It follows from the above that the orders to be made will be substantially those proposed by the mother in the event that relocation to Melbourne is not permitted, together with some orders proposed by the father.
One of the additional orders proposed by the father is for the parties to be restrained from changing the child’s place of residence. I do not consider such an order to be necessary. The mother will need to remain living proximately to the father for the parenting orders to be properly implemented: see Gordon & Westmead (No. 2) [2012] FamCA 546 at [134]. As has been mentioned, parents have as much freedom as is compatible with their obligations pertaining to the child.
The parties agree that they should have equal shared parental responsibility for the child. He should live with the mother, but progress next year to spending four nights in every fortnight with his father in Sydney during school term, and then progress in 2023 to five nights in every fortnight with his father during school term. This gradual movement to five nights each fortnight is appropriate having regard to the age of the child. I consider that it would be too early for the 9:5 arrangements to begin in 2022 given that apparently this year the child has only been spending three nights with the father each fortnight during term.
The parties should share school holidays as they have been doing, and there should be orders for special days of the usual kind. In relation to special days, the mother’s orders do not provide for the child to spend time with her and the father on their respective birthdays and I am satisfied that, as the father proposes, allowances should be made for such time. The father proposes that the parties have different amounts of time with the child on their birthdays, but I can see no basis for any difference in this respect. There will be orders providing that each is to have overnight time with the child on their respective birthdays should they wish.
There should also be an order, as the mother seeks, to ensure that the child has reasonable telephone and FaceTime contact with the other parent not less than four days each week at 5.30pm, or at such other time as the parties may agree. There have been difficulties around such communications in the past, and it is desirable to make an explicit order. I am not persuaded that, as the father proposes, time needs to be set aside for this every day, or that between 6.00pm and 7.00pm is the appropriate time. The mother has expressed concerns that a call at this time tends to interfere with the child’s night time routine, and I accept that this may well be the case for a six year old. The father will need to be flexible and make an earlier call, which his evidence seems to indicate he will be able to do.
Insofar as schooling is concerned, the parties have apparently agreed that if the child is to remain in Sydney he should continue at L School. The father proposes an order to formalise this arrangement. In all the circumstances I am not convinced that there should be an order explicitly providing that the child continue to attend L School. The parties share parental responsibility for the child. It is up to them to decide whether the child should continue at L School or not. They are obliged to consult one another and to make a genuine effort to come to a joint decision about this issue, should it arise: s 65DAC(3) of the Act.
The mother does not provide a regime for changeovers. In all the circumstances I accept that there should be an order for changeovers in the terms proposed by the father, save that the parties can vary those arrangements by agreement between them. Nor do the mother’s proposed orders provide for the parties to keep one another advised of their telephone numbers and email addresses. Although there does not appear to have been a problem in this regard, I am prepared, in all the circumstances, to make such an order. The parties will need to be in frequent contact. The father also proposes non-denigration orders, which is not something contemplated by the mother’s proposed orders. I am satisfied in all the circumstances that such orders would be appropriate.
There will also be orders for travel arrangements, substantially in the terms proposed by the mother. The child’s name should be removed from the Watchlist. The mother should retain the child’s passport as she is responsible for his primary care. The parties should be required to sign documents for the renewal of the child’s passport as necessary, and they should share the costs of this. As the father proposes, the travelling parent should facilitate the child telephoning the other parent no less than twice per week during travel periods.

Given that the parties share parental responsibility I am satisfied that there should be orders, as the mother proposes, for the provision of the orders made in these proceedings to appropriate persons, for the parties both to participate fully in the child’s school life and any medical treatment, and for the parties to be required to inform one another of any illness or injury sustained by the child in their care. Also, as the father proposes, both parties should be at liberty to attend events in which the child is involved.
Finally, the father seeks to have the mother pay his costs of and incidental to these proceedings, although he makes no submissions in support of such an order. The mother’s proposed orders and her submissions are silent on the question of costs. The litigation has been long and hard fought. Both parties have, or have access to, deep pockets. Neither have been wholly successful. In all the circumstances I am not satisfied that there should be any departure from the usual position in cases of this kind expressed in s 117(1) of the Act.
The orders to be made are as set out at the commencement of these reasons, including that all extant applications be dismissed. It is to be hoped that with the certainty provided by final orders the parties will be able to devote all their energies to parenting the child as well as they can and that there can be an end to the hostilities between then. The best interests of this six year old child surely require nothing less.

153 I certify that the preceding one hundred and fifty two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.

Associate:

Dated: 22 December 2021

File number(s):	MLC 3231 of 2019
Judgment of:	MCEVOY J
Date of judgment:	22 December 2021
Catchwords:	FAMILY LAW – CHILDREN – RELOCATION – Where the mother seeks to relocate with the child from Sydney to Melbourne and in the alternative that she retain the primary care of the child in Sydney – Where the father resists the relocation application and seeks a week-about shared care arrangement in Sydney – Where the mother contends that the child will have a meaningful relationship with the father regardless of whether the child lives in in Melbourne or Sydney and that relocation will allow her to further her career, enjoy the support of her family and friends and improve her mental health – Where the mother says the father is not capable, having regard to his work commitments and emotional attunement to the child, to meet the demands of a shared care arrangement – Where the father submits that his relationship with the child would be materially diminished if he were to relocate and that the mother can continue her career from Sydney, maintain the support of her friends and family in Melbourne, and continue to engage with her treating practitioners to mitigate any detrimental impact the refusal of her application may have on her mental health - Where the parties agree that they should have equal shared parental responsibility – Where there are no allegations of family violence or abuse and both parties accept the other is a good parent – Principles to be applied in relocation cases – Where it is found that it is in the best interests of the child and reasonably practicable that he have substantial and significant time with the father – Where it is found that the demands of the father’s work and his lack of emotional attunement to the child are such that that it would not be in the best interests of the child or reasonably practicable for there to be a shared care arrangement – Where it is found that relocation of the child to Melbourne would impair the meaningful relationship between the child and the father –Where it is found it is in the best interests of the child for him to continue living in Sydney and be cared for primarily by the mother – Orders made largely in the terms sought by the mother on an alternate basis.
Legislation:	Evidence Act 1995 (Cth) section 140 Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 64B, 65D, 65DAA, 65DAB, 65DAC, 90C, 117
Cases cited:	AMS v AIF (1999) 199 CLR 160 Angeli & Farina [2020] FamCA 975 Asher & Wilkinson (2020) 61 Fam LR 523 Babcock & Waddell [2018] FamCA 276 Beaton & Beaton [2020] FamCAFC 297 Bolitho & Cohen (2005) FLC 93-224 CDJ v VAJ (1998) 197 CLR 172 Donnell & Dovey (2010) FLC 93-428 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey & Sanders (2007) 208 FLR 287 Goode & Goode (2006) FLC 93-286 Gordon & Westmead (No. 2) [2012] FamCA 546 Hepburn & Noble (2010) FLC 93-438 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 M & S (2006) FLC 93-313 Mulvany & Lane (2009) FLC 93-404 Oswald & Karrington (2016) FLC 93-726 Poisat & Poisat (2014) FLC 93-597 Sigley & Evor (2011) 44 Fam LR 439 Taylor & Barker (2007) FLC 93-345 U v U (2002) 211 CLR 238 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 1 First Instance
Number of paragraphs:	152
Date of last submission/s:	26 April 2021
Date of hearing:	9-12 March 2021, 15-17 March 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Dickson QC with Mr Sweeney
Solicitor for the Applicant:	Lander & Rogers
Counsel for the Respondent:	Ms Vohra SC with Ms Fiskin
Solicitor for the Respondent:	Barkus Doolan Family Lawyers

MLC 3231 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS PORTELLI Applicant
AND:	MR WYMER Respondent

ORDER MADE BY:	MCEVOY J
DATE OF ORDER:	22 DECEMBER 2021