Pyne and Dwight

FAMILY COURT OF AUSTRALIA

PYNE & DWIGHT

[2016] FamCA 1070

FAMILY LAW – CHILDREN – relocation – where the mother seeks an order that she be permitted to relocate with the child – where the father opposes the relocation – where consideration is given to the legal principles relevant to relocation proceedings – where consideration is given to departing from the recommendations of the expert – where an order is made for equal shared parental responsibility – where an order is made permitting relocation – where the child is to spend substantial and significant time with the father.

Family Law Act 1975 (Cth) s 60CA, 60B, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT, 69ZV, 69ZX

AMS v AIF (1999) 199 CLR 160
Andrew & Delaine [2009] FamCAFC 182
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
MRR v GR (2010) 240 CLR 461
Starr & Duggan [2009] FamCAFC 115
U v U (2002) 211 CLR 238
Zahawi & Rayne (2016) FamCAFC 90

APPLICANT:

Ms Pyne

RESPONDENT:

Mr Dwight

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

FILE NUMBER:

PAC

1938

2014

DATE DELIVERED:

13 December 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Parramatta

JUDGMENT OF:

Berman J

HEARING DATE:

21 – 23 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Clifford

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Cook

SOLICITOR FOR THE RESPONDENT:

Ark Law Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lioumis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

Orders

That the parties have equal shared parental responsibility for B born … 2008 (“the child”).
That the child shall live with the mother.
That the mother be permitted to relocate to Brisbane with the child in February 2017.
That until the mother and the child relocate the father shall spend time with child as follows:
(a)During the school term, from 6 pm Friday until 5 pm Sunday each alternate weekend commencing the first weekend after the making of these orders;
(b)For one half of the New South Wales (NSW) end of term and Christmas school holidays in 2016/2017 as agreed, and failing agreement, for the second half;
(c)From 9 am on Christmas Eve to 11 am on Christmas Day in 2016;
(d)At other times as may be agreed between the parties.
That upon the mother and the child relocating to Brisbane the child shall spend time with the father in Sydney or in Brisbane as may be nominated by the father as follows:
(a)During the Queensland (Qld) school holidays as agreed between the parties, but failing agreement, as follows:
(i)For ten (10) days to commence on the first day of the school holiday period at the end of the first and third school terms;
(ii)For one half of the second term school holiday period;
(iii)For one half of the Christmas school holiday period being the first half in odd numbered years and the second half in even numbered years;
(b)On the first weekend of February, March, May, June, August, September, October and November as agreed between the parties, but failing agreement, from the first flight available from Brisbane after 5 pm (Qld time) on Friday until the first flight available from Sydney after 5 pm (NSW time) on Sunday;
(c)On the first weekend in December each even numbered year commencing 2018 from the first flight available from Brisbane after 5 pm (Qld time) on Friday until the first flight available from Sydney after 5 pm (NSW time) on Sunday;
(d)On the Queensland Queen’s birthday long weekend in each year as follows:
(i)In the event the Friday is a public holiday, from 9 am Friday until 5 pm Sunday; or
(ii)In the event the Monday is a public holiday, from 9 am Saturday until 5 pm Monday.
That the father be at liberty to spend additional time with the child in Brisbane as may be agreed between the parties and failing agreement on any weekend nominated by him from the conclusion of school on Friday to 5 pm Sunday provided that:
(a)The father gives the mother not less than twenty one (21) days written notice of his intention to exercise such time;
(b)Such time shall not occur during or on the Easter or Christmas periods or the Mother’s Day weekend;
(c)The father shall ensure that the child attends all extra-curricular activities and for this purpose the mother must provide the father with notice of all such activities.
That for the purpose of the father spending time with the child in Sydney pursuant to order 5 the following shall apply:
(a)The child shall travel by return flight between Sydney and Brisbane;
(b)The mother shall be responsible for arranging and paying for the flights for the child and for so long as may be required, and at her election, an accompanying adult. For the purposes of this order the mother shall use any frequent flyer points available to her and the father shall thereafter reimburse the mother by electronic funds transfer into a nominated account 50 per cent of the net cost of the flight travel within fourteen (14) days of the provision by the mother to the father of appropriate tax invoices and evidence of payment by her;
(c)The mother will advise the father of the child’s travel arrangements and in particular as to the time that the child shall be delivered to and collected from the relevant airport and provide the father with the relevant itinerary fourteen (14) days prior to travel;
(d)The mother or her agent shall deliver and collect the child to and from the father or such other adult as may be nominated by him at the Sydney airport at the commencement and the conclusion of the father’s period of time or such other handover point as the parties may agree;
(e)For the purpose of order 7(b) that within fourteen (14) days of the date of these orders the mother shall open up a bank account for the sole purpose of meeting the costs as required of order 7(b) with a minimum balance of $2,000. The mother shall otherwise ensure the balance of such account does not fall below $1,000.
That for the purposes of the father spending time with the child in Brisbane pursuant to these orders the father and or his nominee shall collect and return the child to and from the mother’s residence at the commencement and conclusion of his period of time.
That the parties shall have telephone communication with the child at all reasonable times during the period that the child is not ordinarily spending time with each of them and for the purposes of this order the parties shall facilitate any request the child shall make to telephone either of her parents and will facilitate the making of such telephone calls without restriction as to the duration of such calls noting that the child is in possession of a mobile telephone which each of the parties will ensure is both charged and operational.
That for the purposes of these orders:
(a)The school holiday period shall commence at 9 am on the day after the last day of the required school attendance at the conclusion of term and shall conclude at 5 pm two (2) days prior to the first day of the required school attendance in the next term;
(b)Changeover is to occur at 5 pm on the mid-point day between the first and last day of the defined school holiday period unless otherwise provided.
That neither party shall denigrate the other party or members of the other party’s family to the child in the presence or in the hearing of the child and shall ensure that the child is removed from the presence of any third party who may denigrate the other party or members of the other party’s family.
That the father be at liberty to communicate with the child by telephone or by Skype video conference if available on at least one occasion in each week and for this purpose both parties shall promptly make all reasonable efforts to have Skype facilities available.
That the mother is at liberty to communicate with the child by telephone or by Skype video conference during the periods that the child is spending time with the father, if available, on at least one (1) occasion in each week and for this purpose both parties must make all reasonable efforts to have Skype facilities available.
That both parties shall sign all documents and do all such things as is necessary to authorise and direct any medical, health, developmental, dental, behavioural and counselling professionals treating or otherwise involved with the child’s care to communicate and provide information to each of the parties.
That the mother will do all things necessary to authorise any school in which the child is attending to provide copies of school reports, notices and all other information pertaining to the child’s school attendance provided the provision of any such information including school photographs is at the father’s sole expense.
That each party shall keep the other advised of their residential address and contact details and shall advise the other party in writing no later than seven (7) days prior to any change occurring.
That both parties are granted leave to provide a copy of these orders to any school that the child may attend from time to time.
That each party shall notify the other as soon as reasonably practicable of any accident or emergency involving the child which involves medical treatment or hospitalisation whilst the child is in their separate care.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pyne & Dwight has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC1938/2014

Ms Pyne

Applicant

And

Mr Dwight

Respondent

REASONS FOR JUDGMENT

introduction

By Amended Reply filed 31 October 2016 Ms Pyne (“the mother”) seeks orders that she be permitted to relocate the residence of B born in 2008 (“the child”) from Sydney to Brisbane.
Mr Dwight (“the father”) seeks orders prohibiting the relocation of the child as proposed by the mother.
A summary of the orders sought by the mother are as follows:
(1)That the parties have equal shared parental responsibility for the child.
(2)That the child lives with the mother and spends time with the father from 6 pm Friday until 5 pm Sunday each alternate weekend during school term and for half of the New South Wales school holidays as agreed, but in the absence of agreement, for the first half in odd numbered years and the second half in even numbered years.
(3)That the child is to spend time with the father from 9 am Christmas Eve to 9 am Christmas Day in even numbered years commencing 2016 and from 9 am Christmas Day to 9 am Boxing Day in odd numbered years commencing 2017.
(4)That time be spent with the father on Father’s Day, with the Mother on Mother’s Day and with each of the parties during the Easter holiday period.
If the child is permitted to relocate to Brisbane then the mother seeks orders as follows:
(1)On the first weekend of February, March, May, June, August, September, October and November as may be agreed but subject to flight availability from Friday evening until Sunday evening.
(2)On the first weekend in December each even numbered year commencing in 2018 from 5 pm Friday to 5 pm Sunday.
(3)On the Queensland Queen’s birthday long weekend.
(4)During the Queensland school holidays as may be agreed between the parties but failing agreement for the first half of the holidays in odd numbered years commencing 2017 and the second half in even numbered years commencing 2018.
(5)Subject to notice the father is to spend additional time with the child in Brisbane on any nominated weekend except for the Mother’s Day weekend.
The particular detail of the orders sought by the mother and the arrangements as proposed in respect of the child’s travel between Sydney and Brisbane are particularised in the mother’s outline of argument document tendered by her counsel at the commencement of the hearing.
The parties are agreed that they should each have equal shared parental responsibility and that the child shall live primarily with the mother.
If the child is not permitted to relocate to Brisbane the orders that each of the parties seek are not dissimilar.
The father does not propose alternate orders in the event that relocation is permitted. The mother will not relocate without the child.
The mother relies upon the following documents:
(1)Amended Reply filed 31 October 2016
(2)Trial Affidavit filed 1 November 2016
(3)Affidavit of Ms C Pyne (“maternal grandmother”) filed 31 October 2016
(4)Affidavit of Mr D Pyne (“maternal grandfather”) filed 31 October 2016
(5)Financial Statement of the mother filed 31 October 2016
In addition the mother relies upon a case outline document filed 18 November 2016 and an outline of argument including a detailed minute of orders sought by the mother tendered at the commencement of the proceedings.
The father relies upon the following documents:
(1)Response to an Application in a Case filed 31 October 2016
(2)Trial Affidavit filed 31 October 2016
(3)Affidavit of Ms Dwight (“father’s partner”) filed 18 November 2016
No outline of argument was prepared on behalf of the father. No point was taken in respect of that omission.
The Independent Children’s Lawyer (“ICL”) assisted the Court by calling evidence from Dr E (“family consultant”) and relied upon her report dated 13 September 2016 as ordered by Hannam J on 11 December 2015.
In addition the ICL relies upon the Child Responsive Program Memorandum dated 19 May 2015 although the author of that report was not called to give evidence.
The Child Responsive Program Memorandum is largely uncontroversial and has been comprehensively superseded by the report of the family consultant.
The outline did not indicate the orders sought by the ICL.

PROCEDURAL HISTORY

The mother initiated the proceedings on 29 April 2014 in respect of property matters.
An Amended Response was filed by the father seeking parenting orders on 5 November 2014.
The parties reached agreement in respect of property settlement by consent orders made 22 December 2014.
On 14 February 2015 orders were made that the child spend time with the father from 6 pm Friday to 5 pm Sunday and for half of each school term with specific provision made for the time to be spent over the Christmas school holiday period. Those orders have largely regulated the parenting arrangements to the present date.
The mother filed a Reply on 24 February 2015 and raised the issue of seeking to relocate with the child to Queensland. Initially the orders sought by the mother provided for the child to spend time with the father during the school holidays and to communicate with him by way of Skype or other electronic or social media platforms.
The matter was listed for hearing and trial directions where made on 11 October 2016.
The matter was listed for trial before me for three (3) days commencing 21 November 2016.
As indicated, the Court was assisted by the appointment of an ICL by order made 23 October 2015 and the attendance during the trial of a solicitor advocate for the ICL.
The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law At 1975 (Cth) (“the Act”) and in determining and giving effect to the principles set out therein, I advised the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and orders at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR.
I consider that I should not deviate from the provisions of s 69ZT and accordingly the parts of the Evidence Act 1995 (Cth) (“Evidence Act”) as set out in s 69ZT were not the subject of further application.
The parties were reminded of the provisions of s 69ZV which highlights my ability to hear the evidence of children in matters which would ordinarily contravene the rules of hearsay and importantly s 69ZX which relates to my ability to truncate, limit and manage what might be described as the routine aspects of the trial.
The matter proceeded and was heard over three (3) days as anticipated.

CHRONOLOGY

The Court was assisted by the preparation of a joint chronology document.
The following matters would appear to be uncontroversial:
·1976 – mother born
·1977 – father born
·2004 – parties commence cohabitation
·2006-2009 – parties reside with the maternal grandparents
·2008 – child born
·April 2012 – parties end their relationship
·21 July 2012 – parties formally separate with the father leaving the former matrimonial premises
·December 2012 – mother and child take up residence with the maternal grandparents in their home and remain living there to the present date
·February 2013 – child commences kindergarten at a local school approximate to the premise of the maternal grandparents
·22 December 2014 – interim orders made providing for the time that the child shall spend with the father
·6 June 2016 – mother seeks to travel overseas with the child from 19 July 2016 to 24 August 2016
·14 June 2016 – subject to conditions, orders are made allowing the mother to travel overseas with the child

BACKGROUND

The mother was born in 1976 and was 40 years of age at the time of the trial. She holds secure professional employment. She has held her employment for 16 years. She considers that she is competent and well regarded in her workplace. There was no evidence to the contrary.
The father was born in 1977 and was 39 years of age at the time of trial. He is not currently in employment.
The father has a child from a previous relationship now aged 16 years. He married his current partner in 2014 and his household includes his partner’s two sons aged 15 years and 12 years and their daughter F born in 2015. The parties generally agree that the early part of their relationship was harmonious.
They lived with the maternal grandparents from 2006 to 2009. This was convenient for the parties and was financially to their advantage.
A significant feature of the proceedings is the extent of the involvement of the maternal grandparents with the child’s care and upbringing. The maternal grandparents have been significant adults in respect of the child’s care she having lived in their home since her birth save for a period of about 3 years between 2009 and 2012 when the parties and the child lived independently of the maternal grandparents.
There does not appear to be any significant dispute that the mother has been the child’s primary carer.
The parties arranged the household management and the parenting of the child to fit in with their work commitments and obligations. It is likely that the maternal grandparents had an integral role in the child’s day to day care and management.
During the relationship, the father’s son lived with the family each alternate weekend and for extended time during the school holidays.

The parties separated in April 2012 as a result of unhappy differences. The parties were not able to reconcile their difficulties, particularly in relation to the status of the father with his current partner. Whilst not relevant to the parenting considerations significant animosity existed between the mother’s family and the father’s family over the father’s relationship with his partner.
Following separation the parties were not able to communicate with any real level of civility. There was deep animosity and mistrust between them with the inevitable consequence that they were not easily able to make arrangements for the child to spend time with the father.
Initially the child was spending 2 – 4 afternoons a week with the father and that remained until proceedings were issued and parenting orders were made.
The mother considered that the father was aggressive towards her and therefore the child’s best interests would not be served by an ad hoc or uncertain arrangement. Whilst the mother may not agree, there appeared to be a level of hyper vigilance in her approach to the time that the child would spend with the father.
Whilst there exists a litany of complaints directed at the behaviour of the father it appears that generally the child enjoyed her time with him and notwithstanding the mother’s reticence, the father’s relationship with the child was affectionate and beneficial.
The parties have not been able to reconcile their differences. They are clearly irritated by and mistrustful of each other. They communicate by text messaging which they consider to be the only viable method of communication.
Since separation it does not appear that the father has been in a position to assist with any financial support for the child. There is currently in place a nil child support assessment and there is nothing in the evidence of the father that would suggest his financial position will change to the point where he may be able to make a contribution in order to assist the mother.
Currently the mother relies heavily upon her mother assisting her in taking the child to and from school and to extra-curricular activities.
Other than the obvious assistance provided by the maternal grandparents in allowing the mother and the child to remain in their home, they also provide financial support for the mother and child. There is no fixed arrangement. I find that the maternal grandparents have been generous towards the parties initially following separation, to their daughter and grandchild and to the extent that their financial resources allow, are likely to continue some level of financial support on an ongoing basis irrespective of whether the child is permitted to relocate to Brisbane or not.
Somewhat begrudgingly the mother recognises that the child has a meaningful relationship with her father. That position appears to be recognised in the orders now sought by her in the Amended Reply.
It is uncontroversial that the maternal grandparents have placed their home on the market for sale with an auction date in February 2017. They have not as yet found accommodation.

THE ISSUES

The mother concedes that the application to relocate the child’s residence from Sydney to Brisbane arises because of her parent’s decision to leave Sydney. It is the mother’s concern that in losing the regular support of her parents, in particular their assistance with the day to day management and supervision of the child and the provision of accommodation and financial supplement, the impact will not only be upon the mother but also the child.
It is not a part of the mother’s case that any distress and upset at her parent’s departure would so affect her psychological functioning that her parenting of the child would be significantly impaired.
The mother would need to find alternate accommodation and in doing so it is likely that the child will need to change schools.
The mother would retain her current employment with her usual hours of work being 8.30 am to 5.30 pm.
Without the assistance of her parents she would need to rely upon pre and after school child care with the attendant cost. There may well be some disruption to the child of an earlier start in the morning and a delay in the evening before her mother is able to collect her.
Whilst she has friends in Sydney, her closest relationships are with her parents.
If she is permitted to relocate the child to Brisbane she considers that a meaningful relationship can be maintained by the father by the child spending extended time during school holidays and one weekend in each month that does not coincide with a school holiday with him.
She proposes that the cost of flights should be shared but she would endeavour to offset as much of the cost as possible by recourse to frequent flyer points in her own name and her father’s.
The move would result in the loss of her longstanding employment and whilst hopeful of gaining ready employment, no alternative employment is presently available.
Initially the mother and child would reside with the maternal grandparents but ultimately she would seek affordable accommodation in a particular part of Brisbane where there appears to be an intention for the grandparents to reside.
The child would leave her current school and the peer group relationships that she has developed and be enrolled in the public school system geographically close to where the maternal grandparents and the mother would seek to live.
Initially the mother would accompany the child on any planned travel to and from Sydney but ultimately it is intended that the child would travel unaccompanied.
The father intends to remain living in Sydney with his family comprising his son from a former relationship, his daughter of his current relationship and his two step sons.
The father maintains a strong cultural connection with his extended South American family.
The father does not provide child support nor is there any other significant financial provision made by him to assist the mother in the care of the child.
The father seeks orders that effectively retain the existing arrangements namely that he would spend time with the child each alternate weekend, half school holidays and other special occasions.
Without financial assistance it is unlikely that he would be able to travel extensively to Brisbane to spend time with the child and accordingly the extent of the father’s relationship with the child must be considered against the background of any impediment to the child spending time with him that might arise if the child’s relocation is permitted.
A further complexity arises from the dysfunctional relationship that exists between the parties and possibly their separate immediate families. There appears to be no likelihood that communication between the parties will ever develop beyond text messaging.
In summary the father seeks to restrain the mother changing the child’s place of residence from Sydney to Brisbane.

EVIDENCE

The mother

The mother relied upon her trial affidavit filed 1 November 2016.
The mother supplemented her affidavit by adducing evidence of the frequent flyer points that she had accumulated and the manner in which those points could be used to offset some of the costs of a return flight for the child and an accompanying adult (likely to be the mother for as long as may be required) between Brisbane and Sydney.
Under cross examination the mother was asked to summarise her reasons for going to Brisbane. Her evidence was straight forward. Since separation, the mother has relied heavily upon her parents not just by way of supplemental financial support but also in terms of accommodation in their household and what she considers to be the invaluable assistance of her parents, but in particular, her mother in caring for the child before and after school.
She highlighted that she gets four weeks of annual leave and whilst flexible in terms of when it is taken, it is likely that two weeks will be taken during the December / January school holiday period with the balance being spread out over other holidays.
The mother works full time and has no other leave entitlements. Accordingly, after she has exhausted her annual leave she relies upon her mother to supervise the child when she is at work and when the child is not with the father.
The mother conceded that a move to Brisbane would obviously result in a termination of her longstanding employment with only a possibility of transferring her employment within the same employer to Brisbane.
When pressed the mother was nonetheless confident that she would get a job, highlighting that she has significant professional experience. She considers that she is well regarded by her employer and has explored other opportunities in her area of employment.
The mother conceded that the child would be sad if she went to Brisbane. The mother recognises that there is strength to the relationship between the father and the child. Inherent in her answer is a consideration that the orders that she now promotes provides one weekend in each month that makes up the school term together with other holiday periods.
She was asked to reflect upon paragraph 90 of the report of the family consultant:
Relocation is likely to have a number of adverse implications for [the child]. It will leave her leaving the school, her peers and activities in a community she has always known. It is also affect (sic) the father/daughter relationship, given the observed strength of the relationship. In the first instance, it would signify a significant loss in the continuity of the regular time [the child] has spent with [the father]. [The mother] and her parents seem to have limited insight into the impact of this and tend to be dismissive of [the child’s] relationship with [the father]. They have demonstrated that they place more value on their needs then they do on [the father] and his family’s regular presence in [the child’s] life and the tyranny of distances is likely to only make those dynamics more entrenched and problematic.
Whilst she did not agree with the views of the family consultant as to her level of insight she did accept that there may be adverse implications for the child in terms of her school, friends, familiar community and the time that the child would spend with the father.
The mother tempers the views of the family consultant by reference to the modest orders sought by the father, namely, each alternate weekend from Friday afternoon to Sunday evening. The father does not seek any extension of his time with the child, irrespective of where the child will reside, and as such, the primary care and day to day parenting needs will inevitably fall to the mother.
The mother agreed, following separation, to an informal arrangement that was put in place which enabled the child to spend time with the father on up to five occasions in each week. That arrangement was later reduced by one occasion at the instigation and request of the father.
The early arrangements made between the parties also resonated with the mother’s assertion that despite the obvious animosity and hostility that exists between the parties her ready facilitation of time with the child is an indication of the extent to which she can be seen to support the father’s relationship with the child.
The mother was cross examined as to the arrangements, if any, that she had put in place for the father to be kept informed of matters affecting the child’s education and attendance at her school.
The mother’s position was clear in that she had no intention of directly communicating with the father and providing him with information, but she asserted that she had placed no impediment to the father receiving all necessary information directly from the school. I have assumed that the appropriate authority was given to the school to release information to the father upon his request.
The mother conceded that if permitted to live in Brisbane the child would miss the father and that it might make it difficult for the father to attend upon the child’s school and participate and observe any extra-curricular activities.
The clear implication of the cross examination on this topic was to highlight that the tyranny of distance would be further exacerbated by the deliberate conduct of the mother to exclude the father from the child’s school and other activities.
I am satisfied, on the evidence, that the mother has given the appropriate authorities to the school and whilst unlikely to engage directly with the father, there is no evidence that she places any other hurdle or impediment in his way.
When the father’s evidence is considered I am entitled to find that any lack of engagement with the child’s school is not promulgated by the mother but rather by a lackadaisical attitude on behalf of the father.
Exhibit 3 in the proceedings shows the extent to which the mother sought to consult with the father in terms of the selection of the child’s school consequent upon the parties separating. There was little positive response or feedback from the father.
I propose to find that the father’s lack of engagement means that the mother has been primarily responsible for the child’s education including decisions that need to be made from time to time and the expense involved.
As an indication of the level of mistrust that exists, the mother conceded that the time the child spends with the father is a constant source of anxiety and distress to her. She has received some counselling from a psychologist but unable to tolerate prescribed medication, she manages her upset without professional assistance.
She readily agreed that if permitted to relocate with the child the anxiety that she already experiences is likely to be exacerbated if orders are made that the child spends time with the father in Sydney. For a significant period of time, it is the mother’s intention to accompany the child during the time that the child would spend with the father.
The mother readily conceded that the child may miss out on the culturally advantageous aspects of the father’s South American background and extended family. To some extent this is moderated by the child spending extended periods with the father over the school holidays and the mother’s proposal for at least one weekend in each month during the school term.
The mother was reminded of the remarks of the family consultant at paragraph 73 of the report that the child who had been transitioning without difficulty between the parties was: “reaching a point where, according to her mother she is resisting spending time with the father.”
It appears that the foundation for the view expressed by the family consultant emanates from information provided by the mother. When asked to expand upon the examples of the child becoming resistive to seeing the father the issue appeared to evaporate. The mother gave an example of the child complaining about some minor matters that occurred in the father’s home upon her return and ultimately she conceded that the issue was not one of the child’s refusals, but that on occasion, the child had expressed some unhappiness in respect of an innocuous incident or event whilst in her father’s care.
The evidence does not support a finding that the child is resistive to spending time in the father’s home or with his immediate or extended family. The mother agrees that the child would want to spend more time with the father. The father however only seeks the orders as set out in his Response.
It is convenient to record that an opportunity was given to the father to consider whether, if the mother was allowed to relocate the child to Brisbane, what orders, if any, he would seek in those circumstances. The father declined to amend his Response but asked that it be noted, in the event the Court found that it was in the best interests of the child to relocate, that he would want orders that would maximise every opportunity for the child to spend time with him.
The focus of the cross examination centred upon the involvement of the father’s partner with the child. The mother’s trial affidavit sets out in some significant difficulty the high level of conflict that the mother considers has been engendered by the inappropriate involvement of the father’s partner. She considered that there was an attempt made to supplant her role as the child’s mother in the father’s household and as result a ground swell of mistrust developed.
The relationship and interaction between the father’s partner and the maternal grandmother became aggressive and fractious. It ultimately resulted in the maternal grandmother exploring an Apprehended Violence Order (“AVO”) against the father’s partner and a mediated resolution which provided for the father’s partner to absent herself during any occasion when there would be interaction between the father and the mother.
Whether it was genuine insight by the mother or she considered that it would enhance her case, she conceded that the influence of the father’s partner was beneficial to the child. At first she was anxious and mistrustful of the relationship but after four years the mother considers that she has moved on and accordingly, is able to concede that it is important to the child to have an ongoing and meaningful relationship with the father and his family.
The mother was asked to explore whether she considered that further counselling or mediation with the father might be of assistance. She considered that it might be worthy of exploration but neither she nor the father had given it active consideration. I do not consider that the mother was being disingenuous in her response but rather somewhat naïve to the prospects of the parties reconciling their differences.
When asked to summarise why she would risk becoming more anxious and the child potentially losing the benefit of the current relationship that she has with the father if she moved to Brisbane, her response was that the risks must be balanced against the advantages of having financial, physical and emotional support of her parents namely a continuation of the current arrangements.
It could not be said that the mother’s future plans are populated with detail. There are some uncertainties as to her accommodation either with her parents or in separate accommodation, the education arrangements for the child and how the child is likely to react to the initial move and the different arrangements for her to spend time with the father.
The mother however counters any argument of uncertainty by highlighting that upon her parents moving to Brisbane she will need to find other accommodation not necessarily in the current area and therefore there is the real potential for the child to change schools in any event. The child will also have the further disruption of being placed in before and after school care rather than being looked after by the maternal grandparents. In summary, the same level of disruption and uncertainty will exist without the security and safety net that has been provided by the mother’s parents.
The mother gave her evidence in a truthful and frank fashion. She made significant concessions in acknowledging the child’s relationship with the father.

Maternal grandmother

The evidence of the maternal grandmother was contained in her affidavit filed 31 October 2016.
Whilst there is considerable emphasis on seeking to disparage the father by reference to what she considers is an aggressive and hostile demeanour, her evidence is important in that it sets out the extent to which the maternal grandmother is involved in the day to day management of the child.
It was uncontroversial that the maternal grandmother was primarily responsible for getting the child ready for school and then collecting her at the end of the school day. Both she and the paternal grandfather have taken on the parenting duties that are required to be performed in circumstances where the mother’s work commitments take her from the home.
The child is actively engaged in a range of extra-curricular activities. On Monday evenings the child learns Spanish. This is at the instigation of the mother. There is pottery on Tuesday and ballet jazz and folk dancing on Wednesday and Friday. The child undergoes a STEAM education program on Thursday nights and then piano.

The activities that the mother is not able to attend to have been undertaken with diligence by the maternal grandparents.
There is no doubt that the maternal grandparents intend to relocate to Brisbane regardless of the outcome of the proceedings. Whatever doubt may have previously existed, I find that the maternal grandparents have a genuine and confirmed plan to sell their current home and are actively looking for a property in Brisbane. They anticipate an auction as early as February 2017 and any lacuna between the sale of their property and the purchase of an alternate property in Brisbane will be covered by the family residing with the mother’s brother in Brisbane.
So as to dispel any doubt, I asked the maternal grandmother to consider a scenario where as a result of a move from Sydney to Brisbane the child’s interests would not be well served. If that was to be assumed her response was that she and her husband would still relocate to Brisbane come what may.
The maternal grandmother was sufficiently perceptive to recognise that the child understands that there is conflict and animosity between the families of her parents. Whilst I do not consider that either of the parties or members of their separate families have embarked upon a process to inform the child of their dislike for each other, I suspect that it is sufficiently palpable and the environment redolent with conflict that the child would no doubt have picked up on the mistrust that exists.
Although denied, it is obvious that the maternal grandmother has kept detailed notes of all that passes from the child in relation to her time with the father. The notes are not benign. They are recorded because the maternal grandmother thinks that they may assist in the litigation.
Whilst I do not accept her denials that the child would be unaware of her note taking, I accept her evidence of the importance and active participation that the maternal grandparents play in the day to day life and management of the child and their intention to relocate as soon as is possible.

Paternal grandfather

The paternal grandfather relies upon his affidavit filed 31 October 2016.
In terms of the content of the affidavit his evidence generally coincides with that of the maternal grandmother.
I am satisfied that whilst he is highly protective of his daughter, he nonetheless recognises the need to ensure that the child is shielded as much as is possible from the conflict that exists between the parties.
Whilst I had no doubt in respect of the veracity of the evidence of the maternal grandmother, her husband confirms their joint intention to return to the Brisbane or G Town area.
Whilst there was no forensic investigation as to the financial circumstances of the maternal grandparents I am satisfied that their reasons for leaving Sydney, with the intention of relocating to Brisbane, are initially financially driven but also out of a desire to move closer to their extended families. Also the family lived in Brisbane up until 1982 before moving to Sydney and are familiar with the area.
Whilst the maternal grandparents have been generous in terms of the financial provision of accommodation and day to day living expenses of the mother and the child and the payment of a substantial proportion of the child’s extra-curricular activities, the maternal grandparent’s financial resources are not unlimited. I expect that they propose to be as generous as they can but whilst the maternal grandfather was reluctant to set a limit on his ability to provide financially for his daughter he made it clear that a contribution towards any rental costs of the mother would be out of the question.
He did consider that he would be able to assist in terms of any shortfall of the costs of the child and the mother returning to Sydney from time to time.
I am satisfied that the maternal grandfather is both genuine and can be relied upon to assist the mother at least in respect of her costs of travel as may be required in compliance with any orders made.

The father

The father’s evidence is as set out in his trial affidavit filed 31 October 2016. The affidavit is modest in its content and consistent with the preoccupation of the parties on the history of dispute and conflict following separation. There is minimal focus on matters likely to assist the Court in determining orders that are in the best interests of the child.
The father does however assert that the relationship with the child is at the highest level and he considers that there is a strong emotional attachment between them. The father’s observations of his daughter in paragraph 12 are important:
I pride [the child] to be one of my biggest accomplishments in life as she is a very loving, caring, quiet and polite child. [The child] is a very helpful child and she always asks if she can help my wife and I at home. [The child] makes her bed in the morning, she organises her clothes and her toys and she always asks to help around the house.
The father properly observes that the child has a good relationship with his current partner.
The father’s opposition to relocation is in encapsulated in paragraph 27 of his affidavit. He considers that the proposed relocation: “will be extremely bad for her wellbeing”.
Despite the underlying premise in his trial affidavit of conflict between the parties and purported disruption of his time with the child by the mother, under cross examination the father agreed that the mother has complied with the orders and that historically there has been two occasions when he did not spend time with the child but of recent date there have been no issues with compliance.
When asked to consider what other complaint in respect of the child’s presentation were of concern to the father he raised that sometimes the child came to him with homework to be done. When pressed he agreed that it had happened on only a few occasions and that the mother had placed an appropriate note in the child’s homework book.
He was also challenged as to the handover arrangements. The parties meet at a train station on Friday at 6 pm and the child is returned to the mother’s care on Sunday at 5 pm at a local town centre.
The father conceded that at present he works as a part-time sub-contractor not having been in full-time employment for approximately four years. There is no logistical difficulty in him attending at the train station to pick up the child. The circumstances are not as convenient for the mother. She is in full-time employment in the city and finishes work at about 5.30 pm. The father conceded that it was only with some considerable effort taking into account travelling time and traffic conditions that the mother was able to attend the designated hand over point at the allocated time.
The father recognised that the mother did not have a motor vehicle and accordingly relied heavily upon her parents to drive her and the child to hand over.
The father was asked to consider the mother’s observations that the child had a loving and close relationship with him and members of his immediate family and the considerable effort required for the mother to ensure that the child attended the handover point on time, it was put to him that his assertion that the mother and the maternal grandparents were active in their attempts to disrupt the relationship between the child and the father had no substance.
It could not be ignored that the parties are mistrustful of each other and at times there has been overt hostility between the maternal grandparents in particular the maternal grandmother and the father’s partner. It is unlikely that their mutual distrust and dislike for each other will dissipate.
The evidence supports the finding that notwithstanding the unfortunate state of affairs the mother appears to have recognised the importance of the child’s relationship with the father. She conceded the importance of the relationship in her evidence and the lack of any adverse event, assertion of non-compliance with orders and the effort that she engages in, in order to comply with the orders would speak against the father’s belief that the basis of the mother’s application for relocation is not focussed on the child’s interests but is rather intended to disrupt, and in his opinion, irreparably so, his relationship with the child.
The father was taken through the history of his time with the child. Following separation the father saw the child on four days during each week and on Saturdays. In February 2013 the father stopped seeing the child on Tuesdays as a result of work commitments. It was put to the father that there was no impediment to him spending time with the child almost immediately following separation.
The extent of the father’s involvement in the child’s school takes on some importance. The father’s evidence is that he does not know what is happening at the child’s school with the inference that there has been a deliberate attempt by the mother and the maternal grandparents to restrict his involvement directly with the school and by the deliberate withholding of relevant information that would enable him to be kept informed as to school based activities.
He agreed that he had been to two parent teacher interviews without any difficulty. He did not know the name of the class teacher and the clear impression gained was that his involvement with the child’s school was the lowest level.
The relevant consideration was whether it was as a result of the father’s disinterest or active opposition by the mother.
The father was strongly challenged on his contention that he had been excluded from the child’s school life. Under cross examination the father was not able to indicate in what way the mother had acted adverse to his interests. He agreed that emails had been forwarded to the father seeking his input as to where the child would attend school. He also conceded that he recognised the mother would be the best placed to make the decision as to the child’s education. Her decision making was sound and the father was content with the child’s academic progress.
The father conceded that the mother had done nothing to interfere with his ability to be involved or engaged at the child’s school. The fact that he had not done so was a reflection of his own inaction rather than any deliberate act on the mother’s part to exclude him from the child’s education.
Whilst reluctant to contemplate the possibility of the child relocating, the father’s reasonable position was that if it were to occur then he would want to spend as much time with the child as possible both in terms of the proposed weekends but also for longer periods as proposed by the mother in school holidays.
The mother’s proposal is that the parties should share equally the cost of travel which until the child is able to travel unaccompanied, will cost a total of, for return flights, approximately $400. The mother would do her best to mitigate the costs by utilising both her and her father’s frequent flyer points and whilst that will assist initially a true reflection of the cost to the father would be a contribution by him of about $200 per visit.
The father’s position is that it would be a struggle to find this money but it was something he could achieve.
His evidence is that he is currently unemployed but has a part-time job as a sub-contractor working for a business owned by his brother in law. There was significant uncertainty as to the extent of the hours worked. His employment varies between 5 and 20 hours per week.
Whilst there have been short periods of full-time employment since separation, a general summary is that the father has been effectively unemployed since separation. His employment status has been reflected in a nil assessment of child support.
The father’s partner is also unemployed. Given that there child is less than 2 years of age that is understandable.
The father considers that he will look for full-time employment in 2017 and is hopeful of finding work.
Consideration was given to a financial statement filed by the father in the proceedings in 2014. His evidence was that his current rent is about $400 per week or slightly in excess of $20,000 per annum. His income for the 2016 financial year was $14,000. The short fall is explained by the Centrelink benefit his partner receives.
The father concedes that he is unlikely to be in a position to pay meaningful child support for the foreseeable future. It is also apparent that he will not be able to contribute to any other expenses of the child including her extra-curricular activities being dancing, music and her Spanish lessons.
The father’s evidence concerning his financial position was unimpressive. Given that the financial support for the child and her activities was likely to be a live issue in the proceedings. The lack of information provided by the father both in his trial affidavit and his evidence was of little assistance.
The evidence supports a finding that the father is unlikely to financially assist the mother with the care of the child for the foreseeable future irrespective of where she may reside.

The father’s partner

This witness impressed as being supportive of the father’s relationship with the child and also having a separate and strong relationship with her.
The evidence supports the involvement of the father’s partner as a benefit to the child.
She confirms that when the child comes into her home she is in a happy frame of mind. That observation lends corroboration to the mother’s assertion that whatever personal animosity may exist, she supports the child’s relationship with the father.
The father’s partner conceded that her relationship with the maternal grandparents remains dysfunctional. Following a mediation agreement and the decision that she would absent herself from the handover arrangements, there has been lessening of conflict between the father’s partner and the maternal grandparents.
This witness is appropriately supportive of the father but was prepared to concede that the communication between the parties is effectively non-existent and is not likely to improve.

Family consultant

By order of 11 December 2015 a family consultant was appointed to prepare a report to assist the Court in its deliberations in respect of the parenting arrangements for the child.
The family consultant considered a range of Court and other documents including the Child Responsive Program Memorandum filed 19 May 2015. Prior to her giving evidence, the family consultant considered the trial affidavits of the parties.
Interviews and observations of the child with each of the parties and significant adults were conducted in February and April 2016.
The report did not have the advantage of the most recent proposals of the parties in particular the current position of the mother which offers one weekend in each calendar month that does not coincide with school holidays in addition to the child spending one half of each school holiday period with the father.
The family consultant appropriately identifies the issues in dispute as follows:
·Whether [the child] be permitted to relocate to Brisbane with her mother
·Parental responsibility
·[The child’s] relationship with her parents and significant others
·The influence and involvement of the maternal grandparents in the dispute
·The live with and spend time with arrangements for [the child]
·The level of acrimony between the parties and significant others
Consistent with his evidence, the report confirms the father’s position, namely that initially following separation he had a workable relationship with the mother but following her residence in her parent’s home he considered that the conflict had escalated and he felt that the mother and her parents were deliberately excluding him from important decisions relating to the child’s wellbeing.
The report records the father’s view that the intended move by the maternal grandparents had been “masterminded”. The clear implication is his consideration that the move and therefore the resultant application for relocation of the child’s residence was designed to minimise and fundamentally disrupt his relationship with the child.
In her interview, the mother highlighted her position, namely, that the father had provided little assistance within the home and in particular with the more mundane aspects of the child’s day to day parenting. In addition the requirements of being a homemaker were made more onerous by the demanding aspects of her employment.
The family consultant records the mother’s acknowledgment that the child had a close relationship with her father and she makes the proper concession that the child is happy and content in her father’s care.
Whatever may have been the earlier difficulties, the parenting arrangements appear to have settled and both parents are generally supportive of the relationship that the child has with each of them. That observation is in stark contrast to the poor level of communication that exists between the parties. The mother was not confident that there would be any reasonable prospect of the inter-parental relationship improving. Each of the parties considered the other to be the protagonist.
The maternal grandparents were also involved in the assessment. A summary of their position is one of unfailing commitment to their daughter and their granddaughter with their further view that their daughter would not be able to easily manage without their physical and financial assistance.
The plans of the maternal grandparents have changed since their interview with the family consultant. At the time there was some equivocation in their determination to relocate to Brisbane. Whilst they would continue to support their daughter their current position is that there is no alternative than the sale of their Sydney home and their move to Brisbane.
As was apparent from their evidence they were disparaging of the father and considered that his involvement with the child was, whilst loving and affectionate, lacking in any real commitment to the suite of parenting issues that would affect her.
The child impressed the family consultant with her understanding of the issues. She was aware that her mother wished to move to Queensland and it was apparent that she had given the matter some thought.
She appeared to be a competent student and had a range of extra-curricular activities involving dancing (in particular ballet), Spanish lessons and swimming.
She clearly enjoys the time she spends in each household and she highlighted her contact not just with her father and his immediate family but his extended South American family. The observed interaction was that the child was happy and relaxed.
At the time of the assessment and the interviews, the parties were focussed on an aspect of the conflict involving the father’s partner. The mother was concerned that the father’s partner was being promoted as her alternative, the maternal grandparents considered that the father’s partner had very little to offer the child. For his part the father considered that his partner was integral to the child’s enjoyment and time spent in his home.
The concern in respect of the involvement of the father’s partner with the child has now largely dissipated. Not only does she play an important part in caring for the child when in the father’s home but she demonstrated considerable insight in implementing the mediation outcome which removed her from the handover arrangements for the child.
Whilst her evidence was brief, I formed a favourable impression of the father’s partner in particular in terms of her helpful insight detailing the extent of the parties’ inability to communicate or reach a consensus.
The family consultant was generally concerned with the potential detrimental effect on the child of their ongoing conflict. Accordingly, she considered that the parties needed to be reminded that their focus should be on the interests of their daughter and not the dispute. At paragraph 72 of the report the family consultant recorded that:
The parties need to be reminded of the strong body of literature which supports the benefits for children in separated families having meaningful relationships with both parents and members of extended kin. Children who are able to sustain such relationships generally have a better prospect for their well being and cognitive, emotional and social development.

The family consultant was concerned that whilst the child was able to move without difficulty between the two households, if the conflict continued this may become problematic.
Fortunately at the time of the trial the more overt aspects of the parties dislike for each other had dissipated.
The family consultant sets out the views of the child at paragraph 80 of her report in the following terms:
[The child] has clearly expressed a view that she wants to have a relationship with both parents and wishes to continue spending time regularly with her father. She has maintained this position and expressed it on both occasions when reports for the proceedings have been prepared. Her views are that she would like to spend even more time with her father. She is afraid that moving to Queensland would water down her chance to see him regularly and, if she moved, she said that she would like him to do likewise.
The family consultant was uncertain as to the extent of the weight that should be given to the child’s view. Obviously at the time of the report the mother’s amended proposal had not yet been presented. It was reasonable for the family consultant to consider that the mother’s proposal which comprised primarily of time spent with the father during school holidays may not have been adequate given the child’s relationship with the father.
The family consultant considered the advantages and disadvantages for the child in the proposed relocation. Her concern was that the relocation was really to meet the mother’s needs rather than those of the child. She was concerned that a move to Brisbane would not fulfil the mother’s expectations and that “her intended relocation is therefore beset with many unknowns”.
The adverse implications for the child would mean a lessening of the time that she was able to spend with the father, a change in school, a diminution of her extra-curricular activities and the potential to effect not just the time that the child spends with her father but the “father/daughter relationship”.
Her summary is best observed in the following extract from paragraph 90 of the expert report:
They have demonstrated that they place more value on their needs than they do on [the father] and his family’s regular presence in [the child’s] life and the tyranny of distance is likely to only make those dynamics more entrenched and problematic.
Her recommendation is that the parties should share parental responsibility, and if unable to do so, then should have recourse to a family therapist. It was her overarching position that the child should remain living with the mother in Sydney and continue to spend each alternate weekend and half school holidays with the father.
Under cross examination the family consultant considered the mother’s current proposal which was essentially eight weekends a year and half school holidays. She agreed that the mother’s proposal was a substantial improvement on her position at the time of the assessment but remained concerned that there could be difficulties with the mechanics and logistics of the child travelling between Brisbane and Sydney and if, for whatever reason, the arrangements became uncertain and were unreliable, this had the potential to adversely impact the child.
The view of the family consultant having considered the trial affidavit material did not alter in terms of the attitude of the maternal grandparents to the importance of the relationship between the child and the father. The family consultant did not have the advantage of hearing evidence and in particular of my finding that whatever underlying animosity may exist, the mother and her parents ensured that the child’s relationship with the father was well supported both physically and emotionally. The litmus test of that commitment was demonstrated by the child’s happy transition between the two homes.
The family consultant was asked to consider the mother’s proposal to relocate against the father’s proposal which was to maintain the current arrangement and to not seek any further increase in time. She was asked to consider whether there would be a real insult to the relationship between the father and the child by a relatively modest reduction in the time that the child would spend with the father given half school holidays and a further eight or nine additional weekends which comprised the mother’s proposal.
The family consultant was asked to consider that at present the child does not see her father for twelve days in each fortnight. She conceded that it was unlikely that there would be any alienation of the father and was encouraged by the suggestion that the mother and her parents support the father’s relationship with the child.
The family consultant was also asked to consider that the greatest risk to the child may be in respect of the mother’s presentation if she is not able to relocate and is required to juggle her employment, her diminished financial position and the likelihood that the child would be moved from her present accommodation in the maternal grandparents home to new accommodation, a different school and the introduction of an unknown aspect in the child’s life namely before and after school care.
A reasonable assessment of the family consultant’s position is that whilst there was some amelioration of her concerns, nonetheless on balance, she did not consider that it would be desirable for the child to relocate.

LEGAL PRINCIPLES RELEVANT TO THE PARENTING ORDERS

Section 60CA of the Act requires that I have the best interests of the child as a paramount consideration. The best interests of the child are met by the application of the objects of s 60B(1).
I am cognisant of the primary considerations and the additional considerations with respect to the matters set out in s 60CC(2) and (3).
I am mindful of the direction contained in s 60CC(2)(A) and have regard to some of the allegations of the father’s aggressive conduct. There is no concession by the father in that regard. I consider however that neither of the parties urges me to bring to account aspects of aggressive or coercive conduct and, in particular, are now respectful of the importance place that each of them has in the child’s life.
Neither proposal of the parties is in any way tempered or has as its foundation any assertion of family violence.
Section 65DAA(1) provides:
Subject to sub-section (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child;
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides:
Subject to sub-section (6), if:
a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
I am required to bring to account the provisions of s 65DAA(3) in my consideration of the appropriate orders to be made.
I am obliged to consider circumstances where I may make an order for equal shared parental responsibility and whether the proposal of each of the parties are reasonably practicable for the purposes of s 65DAA(2)(c). The Act provides assistance in the determination of “reasonable practicality”. In terms of the provisions of s 65DAA(5) namely, the court must have regard to:
a)how far apart the parents live from each other; and
b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
d)the impact that an arrangement of that kind would have on the child; and
e)such other matters as the court considers relevant.
Accordingly, I propose to adopt the following approach:
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and underlying principles of s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both the child’s parents and the need to protect the child or children from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters than this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to the matters as set out in s 61DA (if relevant) which would rebut the presumption.
If the presumption is rebutted, then the Court can proceed to make parenting orders having regard to the provisions of the Act but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires the Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the order would be in the best interests of the child and reasonably practicable. As was said in MRR v GR (2010) 240 CLR 461 the consideration of whether equal time is feasible “requires a practical assessment”.
Section 60CC is to be utilised in order to determine the question about best interests. To determine the issue of whether an order for equal time and / or substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of s 65DAA(5).
I have regard to the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21 where Her Honour considered that following the Full Court decision in Beckham & Desprez [2015] FamCAFC 247 there is now no requirement to consider s 65DAA(1)(a) and (b) in any particular order.
Moreover at paragraph 27 Finn J remarks as follows:
Notwithstanding the imperative language used in decisions such as
Goode & Goode (2006) FLC 93-286, it does seem to me that, as a matter of pure practicality and in the interests of the efficient disposition of parenting cases, a court need only concern itself with the actual proposals which each party puts before it and which, it can be assumed are “reasonably practicable” from that party’s point of view. In so saying, I do not overlook the fact that in U v U [2002] HCA 36; (2002) 211 CLR 238 the High Court made clear that subject to procedural fairness considerations, a court in a parenting case is not bound by the parties’ proposals.

PRINCIPLES APPLICABLE TO RELOCATION CASES

In AMS v AIF (1999) 199 CLR 160 Hayne J highlighted that the focus of the Court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:
[216] An important, probably essential, step in the inquiry into who shall 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.
[217] ...
[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 whether it is better for the child – to be in the custody of the father ... or to be in the custody of their 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 ...
The Full Court in Starr & Duggan [2009] FamCAFC 115 gave clear direction as to the co-existence principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC. The approach is not meant to be rigid such that:
[38] ... it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties’ respective proposals, in this case the mother’s application that the child relocate her residence to Brisbane.
Whilst there is no specific principle of procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parent, the child or children and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90 the Full Court considered a number of authorities both international and local and summarised the position 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 & 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)

PARENTING CONSIDERATIONS

Meaningful relationship

It is not the contention of either party that the child does not have a meaningful relationship with each of them and that they consider the strength of that relationship to be in the child’s best interests.
The concern of the family consultant in early 2016 was that the mother and her parents were not supportive of the child having a relationship with the father and in any event were not prepared to recognise the importance to the child of her relationship with her father and the time that she spends with his family both immediate and extended.
Whilst the extent to which the mother supported the father’s relationship with the child was a subject of significant exploration during the trial, the mother impressed as being able to compartmentalise her dislike for the father and still provide active support for the child’s relationship with him.
I do not conflate the low regard in which the mother and her parents hold the father with their considerable efforts to promote the relationship both emotionally but also physically.
The evidence presented a stark contrast between the difficulty experienced by the mother in juggling her various obligations of employment and parenting with the distinct lack of energy displayed by the father to those aspects of the child’s life that were not neatly encapsulated within the time that she spent with him.
The family consultant was concerned that any substantial diminution of the time that the child would spend with the father may adversely impact upon the child’s close relationship with him. I accept that the relationship is important to the child and provides significant benefit.
The evidence of the family consultant was somewhat tempered by her understanding that the father sought nothing more than a continuation of the current arrangements with the clear implication that during school term, the father had no involvement with the child either physically, remotely or financially for twelve days in each fortnight.
The current orders and those sought by each of the parties would not result in the child spending significant or substantial time with the father.
The narrow focus of the orders sought by the father requires an assessment to be made as to whether the child’s current relationship with him would be adversely impacted by the mother’s proposal. The family consultant conceded that a meaningful relationship is not necessarily to be defined by an arithmetical calculation of the hours and days that a child might spend with a party.
The consideration is exemplified by the clear assertion of the family consultant that the mother’s original proposal, namely, that the child would spend time during the school holidays with the father but not otherwise, would adversely impact upon the child. The family consultant was not quite so certain when considering the mother’s current proposal although it must be recognised that she still maintained her recommendation that it would be better for the child to remain living in Sydney.
The father urges the Court to give weight to the recommendations of the family consultant whereas the mother argues that her proposal considered against her appropriate conduct and efforts in support of the child spending time with the father would speak against recommendations.
In considering the evidence given by the family consultant and the weight that should be attributed to the evidence I have regard to the decision of Andrew & Delaine [2009] FamCAFC 182 where the Full Court considered the treatment and weight to be given to recommendations of a family consultant:
[72] It is not in doubt that an expert’s opinion, which is based on an appropriate foundation and given by a suitably qualified person, will carry substantial weight. Departure from an expert report in such circumstance requires careful consideration by a trial Judge. However, the ultimate decision still must be that of the trial Judge. The weight to be given to a family report was explained by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819 as follows:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 FLR 285.
b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
d)Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
e)Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
f)Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court’s investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
…

I have assessed the presentation of the parties in order to determine the extent to which the mother’s assertion that she supports the father’s relationship with the child is reliable. By implication, the father considers that it is not.
If the evidence supported a finding that the mother and her parents were disingenuous in their acknowledgment of the benefits to the child of a relationship with her father and therefore their support of that relationship, such a finding may well be adverse to the mother and determinative of the proceedings. The evidence does not support such an outcome. Whatever animosity and mistrust that may still exist between the parties, the mother’s demonstrable efforts in supporting the child spending time with the father and therefore the relationship are obvious. Moreover, the mother has done so against the background of little or no assistance from the father either physically or financially. While she relies heavily upon her parents, their combined effort has resulted in the observations of the family consultant, the parties and members of their extended family, that the child transitions happily between the two households and the time spent with her father is both meaningful and beneficial.
The evidence supports a finding that if permitted to relocate, as proposed, the mother would be no less engaged in promoting the child’s relationship with the father.

Views of the child

The child is nearly nine years of age. She impressed both the family consultant engaged in the preparation of Child Responsive Program Memorandum and the family consultant who authored the report.
The child appeared to have an understanding of the purpose of the proceedings and her involvement with the family consultant and her views can be summarised as the child not wishing to see less of her father. She clearly enjoys the time with her father and his family and would wish that it not be diminished.
It is to be expected that the child would have no concept of the broader issues that impact upon her parents and in particular her mother’s circumstances. She knows her mother wants to move to Brisbane and with understandable naivety considers if that were to occur she would want her father to move with them.
The child’s views in this case are important but not necessarily determinative. The evidence supports an outcome that must have at its foundation the retention of the integrity of the relationship that the child now enjoys with the father and his family. That does not necessarily equate to a requirement that nothing less than the current arrangements would suffice.
It is therefore the totality of the proposals of each of the parties, but in particular, the mother that needs to be given careful consideration.
This child cannot be expected to have a sophisticated overview of all of the issues involved. The mother can be seen to have given some thought to the issues as is apparent from her revised proposal. The father has not considered any alternative other than the retention of the current arrangements, unaltered and undiminished. That cannot be seen as a criticism of the father. He is entitled to maintain the current arrangements in circumstances where he considers that they best serve the interests of the child.
An application for the relocation of a child is always complicated and distressing. The mother’s anxiety is palpable. She relies heavily upon her parents in circumstances where little assistance is provided by the father. In U v U (2002) 211 CLR 238 at paragraph 92 the following is stated:
… 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.

Nature of relationship of the child with others

As has been stated, the child has a close relationship with her parents and the members of their respective extended families. Of note is the child’s close relationship with the maternal grandparents who are integral to the parenting arrangements put in place by the mother.
The family consultant observed that the child was unerringly positive in respect of the parties, the father’s partner, members of his immediate and extended family and the maternal grandparents. No negative feelings were ascribed to any of the significant adults in the child’s life. That consideration alone is suggestive of parties who are able to put aside their animosity towards each other in recognition of the needs and interests of their daughter.

The extent to which each of the child’s parents are involved in the child’s life

Whatever dispute or difference that remains between the parties, there is common ground that the mother has been primarily responsible for the care of the child. Her decisions would appear to have been appropriate. There is no complaint by the father as to the arrangements put in place by the mother for the child’s care when in the mother’s home and I repeat my earlier findings that the father has not sought to involve himself in the child’s schooling or extra-curricular activities. To the extent that there was a suggestion that the mother had adopted a unilateral approach to the child’s education, attempting to exclude the father, such a contention is not supported by the evidence and is rejected. The father has had a significant opportunity to engage with the child’s school and has chosen to involve himself at the most minimal level. That is not a criticism of the father but rather an observation which enables a finding that in respect of important and significant decisions affecting the child, the father defers to the mother’s better judgment.
This is not a case where there has been parallel parenting but rather where the father appears to accept that the mother makes good and caring decisions for the child.
It is significant that the mother engages the child in Spanish lessons clearly in deference to the child’s South American background.
The father pays no child support nor does he provide any other financial assistance to the child by contribution to her extra-curricular activities in particular dancing classes, swimming lessons and Spanish classes.
The father’s financial position is unlikely to change and there is no evidence that the father’s position will alter for the foreseeable future.
Irrespective of where the child might reside the mother would assume the role of primary care giver in a manner no different to that which currently occurs.

Likely effect of any change in the child’s circumstances

The proposal of the father seeks to retain the current arrangement that has the child spending each alternate weekend and half school holidays with the father. It is not critical to the father’s proposal that the child remains living either in the home of the maternal grandparents or even in the general locality of the premise.
The father does not appear invested in the child’s current school. He either does not have a view or is not opposed to the child changing school. The extra-curricular activities of the child have been at the election of the mother without objection or input by the father.
The father does not seek any extension of his time and is content for the current orders to regulate the future arrangements.
His objection to the proposed relocation of the child to Brisbane is not founded upon the significant change that it may represent for the child but rather that his opportunity to spend time with the child would be reduced.
He is also concerned that notwithstanding the proposed arrangements for the child to travel initially accompanied and then unaccompanied between Brisbane and Sydney, opportunity exists for the arrangement to break down. The mother and possibly the child might tire of the requirements for travel that are necessarily associated with the mother’s proposal.
For her part, the mother recognises that it will be a significant change for the child not just because there will be a reduction in the number of weekends that the child can see the father and his family, but there will be a change in the child’s school. New friends will need to be made and the child will be necessarily unfamiliar with her new home whether it is living with the maternal grandparents or with the mother living independently from her parents.
The mother’s proposal seeks to replicate, as near as the tyranny of distance will allow, the current arrangements. I suspect that the child’s time with the father during school holidays will remain happy and fulfilling irrespective of where the child resides. That aspect of the mother’s proposal was not of concern to the family consultant.
In order to meet the inevitable criticism and complaint as to the consequences of the mother’s proposal to relocate, she offers at least one weekend in each month that comprises the school terms. In addition other opportunities exist during Queensland long weekends and there is the open opportunity for the father to spend time with the child in Brisbane. I suspect that the father is unlikely to avail himself of that opportunity.
The focus is therefore on the weekend periods that form part of the mother’s proposal.
Of necessity the father’s time will reduce by the equivalent of about eight weekends in each year, potentially ameliorated by some the time seeing the father on some long weekends and perhaps by an extension of some of the holiday periods.
I have already found that the mother is genuine in her proposal. She is also supported by her parents who impressed as being highly supportive of their daughter, the child and importantly, respectful of any orders that would require compliance by the mother.
The most immediate issue that arises in respect of the mother’s proposal is the cost of the child travelling between Brisbane and Sydney. The mother has assessed the cost at about $400 return which initially would include the cost of an accompanying adult. The mother proposes to amortise some of the cost by utilising her frequent flyer points. That will assist initially but the advantage of points will soon dissipate.
I am confident that the mother, possibly with the assistance of her parents, will be able to meet the anticipated half share of the travel costs of about $200 per month.
The father’s position is a little more uncertain. When pressed in cross examination he agreed that in all probability he could meet the extra cost. I also have some confidence in the mother and her parents being flexible and if a financial issue arises the mother will defer to the advantages to the child of spending time with the father.
It is the father’s firm intention to make a financial contribution towards the child and I accept his evidence that if the Court considered that it was in the best interests of the child to allow the relocation to occur, then he would consider it important to ensure that he is able to contribute his half of any travel costs in order that the child can spend time with him.
Initially the mother will reside with her brother until her parents purchase a home. It is uncertain as to how long the mother and the child would remain in the parents’ home but I am satisfied on the evidence that the maternal grandparents have shown an unwavering commitment to their daughter and granddaughter.
The mother will be leaving her current employment for uncertain employment in Brisbane. She considers that there may be some opportunity for her to transfer with her current employer. She impressed as having a high level of experience in her profession and I do not consider that it is an inappropriate leap of faith to have confidence that after sixteen years in the area the mother will readily find employment. She is motivated, qualified and experienced.
The child will experience the disadvantage of the time and effort lost and expended in travelling between Brisbane and Sydney. That disadvantage will count for little during the school holidays where the period of time with the father is extended whereas the weekends will not be so convenient.
What is not able to be contemplated by the child and indeed it would not be appropriate for her to be so burdened, is the significant disruption that will occur if the child is not permitted to relocate. I accept the inevitability of the sale of the maternal grandparents’ home being surroundings familiar to the child, the likelihood of having to attend a new school and without the assistance of the maternal grandmother the certain prospect of the child being enrolled in before and after school care.
It may be that the child will be distressed at the magnitude of the disruption to her current settled life if relocation is not permitted.
What she will lose is the direct and critical involvement of the maternal grandparents.

The capacity of the child’s parents and other persons to provide for her needs

I am left in no doubt that wherever the child might live the mother will continue to provide for the child’s physical, emotional and intellectual needs. Life may well be substantially different for the child but I find that the mother will continue to provide a continuation of care for the child at the highest possible level.
The father’s engagement in the day to day parenting of the child is largely passive but that does not diminish the clear delight that the child experiences arising from her engagement with him and his family.
The mother relies heavily on her parents for assistance and to date it has been provided without condition or reservation.
The mother considers that her ability to parent the child would be enhanced by the continued provision of assistance from her parents. It is against that background that the mother crafts orders that she considers will not diminish the importance of the child’s relationship with her father.

Parental responsibility

The parties each seek an order of equal shared parental responsibility.
There are aspects of the parties’ relationship which would at first consideration speak against such an order. It is open on a consideration of the factors raised in s 60CC but, in particular, the dysfunctional inter-personal relationship between the parties, given that they are not able to communicate other than via the impersonal use of text messaging, their lack of comity would be the very antithesis of an order of shared parental responsibility.
The issue was raised directly with counsel and whilst all agreed that there were undesirable aspects of the relationship of the parties with each other nonetheless the empirical evidence is that decisions have been made with the result that the child appears not to have been exposed to the conflict and there has not been a hiatus in the implementation of necessary arrangements for the child. Whilst this outcome primarily comes about because the father defers to the mother’s judgment, nonetheless that is how the parties have determined to manage the child and to date, apparently to good effect.
The evidence however is not simply a reflection of the current arrangements but rather there is evidence that the mother has sought to confer with the father, in particular, in relation to the selection of the child’s current school. To date, the father considers that the mother has made wise decisions and he defers to her better judgment.
There is no optimal benchmark or key performance indicator as to the many and varied parenting arrangements that parents put in place. It seems to me that where the parties are content and the evidence is that the level to which they ultimately devolve has positively benefited the child, then a Court should not likely interfere with that approach. I do not intend to do so in this case.
Whilst a number of other considerations would ordinarily flow from a determination of equal shared parental responsibility, in this case, the father’s position is to not seek any increase in time with the child and he does not put forward alternative orders in circumstances where the child is permitted to relocate.
What is required however, is a consideration as to whether the proposals of the parties are reasonably practicable.

Practical considerations of the parties’ proposals

The father’s proposal requires little consideration. He seeks a continuation of the current arrangements and if relocation is not permitted then there is unlikely to be any implication for the orders that he seeks. If relocation is permitted than he seeks “as much extra time as possible”.
The focus therefore is upon the mother’s proposal. I have given her circumstances careful consideration. As indicated, I do not see that it would be impracticable for the child to spend time with the father during school holiday periods irrespective of where the child might live.
The other proposed occasions require a consideration of distance, travel arrangements and financial wherewithal.
In the circumstances of this case I consider that they are all able to be dealt with. Whilst the child may have an idealised view of spending time with her father pursuant to the current arrangements, in reality, there will be little effective reduction in the quality of her time spent with her father. In any event the child is not able to contemplate what is likely to be a significant impact if the mother were to remain in Sydney and not relocate with the child to Brisbane.
I have found that there is a significant level of support in the mother’s home for the child’s relationship with her father. The mother’s proposal will not result in a cessation of time but rather an alteration to the manner in which the child spends time with her father.
The impact upon the child is not such that her relationship with her father would be put at risk.
I find that the proposals of each of the parties are reasonably practicable and are not likely to diminish the child’s relationship with her father.

CONCLUSION

Where a parenting proposal includes a proposed relocation the Court is presented with a difficult decision.
The child is to remain in the primary care of the mother into the foreseeable future. That is conceded by the very nature of the father’s orders.
Unaided there is the risk that the mother’s circumstances would be so adversely affected that her ability to parent the child would be compromised. Certainly there would be a change in the accommodation familiar to the child and a loss of the daily involvement of the maternal grandparents.
On balance, I have confidence in the mother’s presentation and am entitled to accept the assertions of the maternal grandparents that they will continue to provide appropriate support to the mother.
In the circumstances of this case it is reasonable to accede to the orders that the mother seeks but with the modest adjustment of an increase in time that the child spends with the father in the school holidays at the end of term one and term three together with the utilisation of some further time with the father to coincide with a long weekend.
I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and eighty-four (284) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 December 2016

Associate:

Date: 13 December 2016

[2016] FamCA 1070

13 December 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness