Radcliffe and Earle - [2011] FMCAfam 518

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RADCLIFFE & EARLE

[2011] FMCAfam 518

FAMILY LAW – Parenting – application to relocate to Brisbane from [N].

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

MRR v GR [2010] HCA 4

Applicant:

MR RADCLIFFE

Respondent:

MS EARLE

File Number:

WOC 437 of 2010

Judgment of:

Altobelli FM

Hearing date:

11-12 April 2011

Date of Last Submission:

12 April 2011

Delivered at:

Sydney

Delivered on:

2 June 2011

REPRESENTATION

Counsel for the Applicant:

Mr Alexander

Solicitors for the Applicant:

R & M Legal Solicitors & Attorneys

Counsel for the Respondent:

Mr Cook

Solicitors for the Respondent:

Kelly Mullard & White Solicitors

ORDERS

That the parties have equal shared parental responsibility for the Child [X] born [in] 2002.
The Mother has responsibility for decisions as to the child’s day to day care, welfare and development when the child is living with or spending time with her.
The Father has responsibility for decisions as to the child’s day to day care, welfare and development when the child is spending time with him.
The child live with the Mother.
The child be permitted to relocate to Brisbane with the Mother.
The child spend time with the Father as follows:-
(a)For one weekend during each Queensland school term, as agreed between the parties, and failing agreement, from the conclusion of school Thursday until before school on Monday, on the weekend after Week 5 of the Queensland gazetted school term;
(b)For the entire gazetted Queensland school holiday period, with the exception of the Christmas school holiday period, commencing on the first day of the school holiday period and concluding on the Friday immediately prior to school resuming;
(c)For one half of the gazetted Queensland Christmas school holiday period, as follows:-
(i)For the first half in even numbered years, commencing the first day of the Christmas school holiday period; and
(ii)For the second half in odd numbered years; and
(iii)Such other times as agreed between the parties.
That in addition to living with the Mother in Order 4, the child is to spend time with the Mother on the following occasions of special significance:-
(a)For one half of the gazetted Queensland Christmas school holiday period, as follows:-
(i)For the first half in odd numbered years, commencing the first day of the Christmas school holiday period; and
(ii)For the second half in even numbered years; and
(iii)Such other times as agreed between the parties.
That for the purposes of the implementation of these Orders, the Mother is to deliver the child to the Brisbane Domestic Airport Terminal and the Father is to collect the child from the Sydney Domestic Airport Terminal at the commencement of contact, unless otherwise agreed.
That for the purposes of the implementation of these Orders, the Father is to deliver the child to the Sydney Domestic Airport Terminal and the Mother is to collect the child from the Brisbane Domestic Airport Terminal at the conclusion of contact, unless otherwise agreed.
That for the purposes of mid-term weekend contact, provided the Father is able to personally take the child to school on the Monday morning, then return is to be to the school. If the Father is unable to do so, however, the child is to be returned to the Brisbane Domestic Airport Terminal on a flight arriving no later than 6:00pm on the Sunday night.
That the cost of the child’s travel from Brisbane to Sydney is to be paid by the Father and the cost of her travel from Sydney to Brisbane is to be paid by the Mother, with all travel arrangements to be communicated to the other parent no less than 28 days before the date of travel.
The child is to have the following parental communication:-
(a)Telephone communication with the Father once per week whilst she is living with the Mother;
(b)Telephone communication with the Mother on one occasion during the weekend she is with the Father;
(c)Telephone communication twice weekly with the Mother when she is on school holidays with the Father.
(d)Privacy during telephone conversations with both parents and each parent is to ensure that they facilitate this.
(e)Email, Facebook, SMS and Skype communication with each parent at all reasonable times;
(f)For the purpose of implementing order 10(e) each parent shall at his or her cost obtain and maintain the equipment and services necessary at their respective homes to enable Skype contact and shall forthwith notify the other by e-mail of their e-mail address and of any change in e-mail address by which contact is to be undertaken and notice is to be provided forthwith by a parent to the other parent on that parent learning that the child will not be able to have access to Skype .
Both parents will ensure that they keep each other informed as soon as it is reasonably practical of:-
(a)Any medical problem or illness suffered by the child whilst in each parent’s care;
(b)Any medications that have been prescribed for the child;
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding the child;
(d)Any significant social, school or religious functions which the child is to attend;
(e)Their current contact telephone numbers (including both landline and mobile, if applicable) and their current residential address; and
(f)Any other important matters relevant to the welfare of the child.
Each parent is to advise the other parent of any changes to their residential address or telephone numbers within seven (7) days of the change occurring.
Each parent will authorise any relevant health or educational professional to provide the other with copies of school reports and any other reports, information and documentation relating to the health and education of the child.
That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the child and that the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the child.
That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of the child and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of the child.
The parties must within 14 days contact Relationships Australia on (02) 4221 2000 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for the Parenting Orders Program.
In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Magistrates Court.
Parties are to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.
The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
Both parties to share equally the costs of the program.
That should the Father relocate to within a 30 minute driving time of where the Mother and the child are residing, then the child will spend time with him as follows:
(a)In week 1, from after school (or 3:00pm on a non-school day) on Friday until before school (or 9:00am on a non-school day) on Monday, and each alternate week thereafter;
(b)In week 2, from after school (or 3:00pm on a non-school day) on Wednesday until before school (or 9:00am on a non-school day) on Friday, and each alternate week thereafter;
(c)From 1:30pm on Christmas Day until 5:00pm on Boxing Day in all even numbered years;
(d)From 5:00pm on Christmas Eve until 1:30pm on Christmas Day in all odd numbered years;
(e)At any other times as agreed between the parents.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 437 of 2010

MR RADCLIFFE

Applicant

And

MS EARLE

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about [X] who is eight years old. [X]’s mother, who is 29 years old, would like to relocate with [X] from [N] (NSW) to Brisbane. [X]’s father, who is 31 years old, prefers that [X] remains living in the [N] area. This case is about making the order that is in the best interests of [X]. The mother’s proposal involves a relocation to Brisbane. The father is the applicant and the mother the respondent in these proceedings.
The parents commenced cohabitation in 1998 when the father was 17 and the mother was 16. By the time [X] was born in 2002 they were aged 21 and 20 respectively. The impression that I have formed from all of the evidence is that the parents were immature at the time of cohabitation, were immature at the time [X] was born and thus ill prepared for the responsibilities of parenthood, and acted immaturely during the course of what can only be described as a tempestuous relationship that finally ended in 2007. The description of the parents as immature is not meant to be conveyed in a critical sense. The description reflects, however, how unprepared both of them were for the responsibilities of parenthood.
All of the evidence confirms to me that communication was problematic throughout the relationship and it continues to be problematic. In short, even after hearing all of the evidence, the court is left with the profound impression that SMS communication between these parents is about as good as it gets. It was also a highly conflicted relationship. This conflict was manifested verbally, physically and through electronic means. Despite the fact that [X] was often exposed to this conflict, she has so far demonstrated resilience. Thus notwithstanding the parental conflict, she appears from the evidence to be a well adapted, happy child who enjoys a good relationship with both of her parents.
The verbal abuse that took place during the marriage was, based on all the evidence before me, mutual, though initiated by the father more often than not. The verbal abuse continued in electronic form after separation. There was also physical abuse which was again, more often than not mutual, but likewise, mostly initiated by the father. The level of physical abuse is not an issue in these proceedings. The family violence was situational and often reactive to events. The mother does not seek any orders dealing with the father’s conduct or behaviour. The absence of any relevant injunctions can only lead the court to conclude that whatever her concerns about the father’s abuse and violence, it is not an ongoing one which would warrant her seeking orders.
The mother also complained about the father’s controlling behaviour, and a sub-current of her case is that he continues to control her by refusing to permit [X] to relocate to Brisbane. After having heard all the evidence, whilst I accept that the mother’s concerns about control may well have had a good basis during the relationship, there is no evidence to justify these concerns for the future. As I have foreshadowed however, the real issue about the parental conflict is that [X] has often been exposed to it.
The mother asserts, and the father concedes, that he struggled with an addiction to marijuana during the relationship and after separation. The evidence indicates that he is remorseful of this and that he shows an insight into the effect of his addiction on the parental relationship, and on the mother’s capacity to parent. By the time of the hearing before me, I did not understand it to be a serious part of the mother’s case that the father’s addiction to marijuana continued. She sought no orders by way of injunctions or in relation to drug tests, so again, the court is left in the position where it must conclude she had no reasonable concerns on this issue. Moreover, having heard all of the evidence, even if the mother did have concerns about the father’s consumption of marijuana, there is no evidence to justify this as a legitimate concern for the future.
Despite a tempestuous relationship and separation, these parents have engaged with the family dispute resolution system outside of the courts quite successfully. For many years they have had in place a parenting plan that provides for the shared care of [X]. [X] has lived with her mother nine nights each fortnight and with her father for the remaining five. Though there have been a few difficulties along the way they have managed to deal with special occasions and holidays as well as work around each other’s personal and work commitments. It is an interesting feature of this case that both parents agreed that the current contact arrangement works and is in [X]’s best interests. If I decline to permit relocation, the order that both parents prefer I make is to reflect the current situation.
Indeed, having heard all of the evidence, in the event that the father is able to relocate at some time to Brisbane, or such other place as [X] may be living (of course, in the event that I make the order sought by the mother), then the current shared care parenting arrangement would be the most appropriate one to put in place.
The mother’s proposal is that she be permitted to relocate to Brisbane. Her current husband, who is a [occupation omitted], is based in Brisbane. By the time these reasons are delivered, it is quite likely that the mother will have given birth to her husband’s child. The mother’s proposal is, in short, that the parents have equal shared parental responsibility, that [X] live with her and be permitted to relocate to Queensland with the mother, and that the father spend time with [X] for one weekend during each Queensland school term as well as during Queensland school holidays. The exact order proposed by the mother is set out in the annexure to these reasons for judgment.
The father’s proposal also involves equal shared parental responsibility, but he seeks an order that the mother be restrained from relocating to an area outside a 30 kilometre radius from [N]. He proposes a shared care arrangement which reflects the current arrangements. The precise orders sought by the father are also contained in the annexure to these reasons. It must be noted, of course, that the father has an alternative proposal and that is that [X] live with him and spend school holidays with her mother. This of course, is based on the scenario where [X] is not permitted to relocate, but the mother chooses to move anyway. This is not a realistic scenario however. The mother’s evidence is that if [X] is not permitted to relocate then she will not move.
In any event, despite the father’s involvement in [X]’s life during the relationship and the shared care arrangement that [X] has enjoyed with him since separation, the nature of [X]’s relationships are such that it could not possibly be in her best interest to live with the father, and have the very limited contact arrangement that he proposes in his alternative proposal. In these circumstances, the father’s alternative proposal is of academic interest only.
It must be recognised, as I think it clearly was during the hearing, that the mother is entering a period of intense vulnerability in her life, due to a combination of the present proceedings, separation from her husband, and the imminent birth of their child. This has the obvious impact of reducing her availability for [X].
If I were to permit [X] to relocate, one of the issues is whether she will be able to sustain a long distance relationship with her father with greatly reduced frequency of contact. Another interesting feature of this case is that even the father conceded in cross-examination (although reluctantly, and when pushed) that [X]’s relationship with him would survive the long distance and the longer separations. This is a finding I would have made anyway, because it is consistent with the Family Consultant’s observation of the nature of the father’s relationship with [X], as well as the mother’s own evidence about the strength of this relationship. In these circumstances, the shift focuses to the willingness of the mother to facilitate and encourage this relationship.
The father gave evidence as did his mother. The mother gave evidence as well as her husband. In addition, the Family Consultant, Ms S, gave oral evidence as well as providing a Family Report that was released to the parties on 3 February 2011.
As I foreshadowed before, the parents had been living in [N] until 2010 when the mother unilaterally located to Queensland in about May. The evidence leaves me in no doubt that the father’s consent was neither sought nor obtained, and the relocation was carefully planned and premeditated. Indeed, the mother sought to mislead the father that the move was a temporary one. The mother had formed a new relationship with her current husband who was based in a suburb of Brisbane. She moved in with her husband in accommodation provided by [employer omitted] and [X] went to a local school. On 10 August 2010, after hearing submissions from the solicitors for both parties, I ordered the mother to return [X] to [N] within 28 days and to reside in [N] or an area within a 30 kilometre radius of [N].
I made interim parenting orders that reflected the previous and indeed, now current, contact arrangements. In addition, I ordered the father to pay the mother $50 per week for the purposes of contributing to the costs of re-accommodating the mother and [X]. I also listed the matter for final hearing.
The case before me raises a number of issues that I will describe in more detail below. In broad terms, there a number of alternatives before the court. If I permit [X] to relocate to Brisbane with her mother, then the options are that the father remains in [N], or he moves to Brisbane. If I decline to make the order for relocation, then the options are that the mother remains in [N], or that she moves to Brisbane but leaves [X] with her father in [N]. Another option that seemed to evolve during the course of the evidence was that I make an order that [X] not relocate to Brisbane, but if the mother’s husband could be [relocated] to [H], south west of Sydney, that relocation might be permitted to that area. It is possible to rule out some of the options, even at this stage in my reasons, and I propose to do so as it will simplify my consideration of the relevant, remaining issues.
I accept the mother’s evidence that she will not relocate to Brisbane if I do not permit [X] to also relocate. This means that if no relocation is permitted, the mother will remain in [N] and will remain the principal carer for [X]. As I have indicated above, I do not consider it was ever a serious part of the father’s case that he become the primary parent for [X] if the mother was physically present to perform that role. The option of [X] remaining, but her mother moving, is therefore not an option that I need to consider on the facts of this case. It is not an option in any event, that I would consider to be in [X]’s best interests.

I also rule out the [H] option. Based on the evidence of the mother’s husband, Mr S, it was by no means a certain thing that he could be transferred out of his current [workplace] to the [workplace] based in [H]. He was sceptical about his prospects. It was clearly not his preference. In any event, the major stumbling block with the [H] option is that the [workplace] based there is to be [relocated] to Townsville. Whether this occurs in the next six months or 12 months is neither here nor there for present purposes. The obvious benefits to [X] if her stepfather could [relocate] to [H] is that there is less travel time and it would not involve travel by air. However, even with the [H] option, she could not maintain her current shared care arrangement with her father. I therefore rule out the [H] option.
In the reasons that I set out below, I intend to explore the remaining options by reference to the primary and additional considerations set out in section 60CC of the Family Law Act 1975, as well as consider the legal and practical implications of an order for equal shared parental responsibility, which is common ground between the parents. After setting out the applicable law, I will make some observations about the parents and their respective witnesses, and then deal with the Family Report.

Applicable Law

In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1)    The objects of this Part are to ensure that the best interests of children are met by:
(a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)    to maintain a connection with that culture; and
(b)    to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)    to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)    family violence.
(3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)    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; and
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.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)    the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)    the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, 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.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)    Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)    The primary considerations are:
(a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)    Additional considerations are:
(a)    any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)    the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)    other persons (including any grandparent or other relative of the child);
(c)     the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)    the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)    any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)    if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)    the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k)     any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii)    the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)    any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

Impressions of the Parents and their Witnesses

Cases involving proposals for relocation are always difficult. Most of them, including this one, are finely balanced. In a relocation case, it is quite rare for one parent to emerge as a clearly superior one. Indeed, it is more often than not the case that both parents have their strengths and weaknesses. The very nature of litigation often draws attention on aspects of the parents’ personality, character, and past and present conduct, all with a view to seeking to “tip the balance” in favour of one parent’s proposal. All of this is usually dressed up as being an exploration of what is in the best interests of a particular child. The present case bears many of these features.
I have already commented on the immaturity of the parents. This has clearly improved and, indeed, I commended both of them, during the evidence, about how their presentation before me was in marked contrast to some of the earlier behaviours attributed to each of them in their affidavits. I am satisfied that neither the mother nor the father, nor their respective witnesses, lied to the court or sought to mislead in any way. If there are differences in the evidence, I am satisfied it is based on different perceptions of the same event. It is clear that both parents lack insight.
Both of them lack insight about the potential impact on [X] of their inability to manage their conflict, and to improve their communication. As I indicated before, communication by SMS, for these parents, is about as good as it will ever get. That is unfortunate for [X], although she has demonstrated a resilience which probably reflects on the standard of care and love that both parents have provided to her. I think the father lacks insight about the impact on the mother, and her capacity to parent, of his past behaviour, particularly when he was under the influence of marijuana and/or alcohol. He demonstrates an ability to acknowledge his past abusive behaviour towards her and this is to his credit.
It is the case that the father’s immaturity is marginally worse than that of the mother. Indeed for the father, I felt at times as if it was one step forward, two steps back. The evidence about his Facebook entries, when he appeared to gloat over what he perceived to be his success in having [X] returned to [N], together with some petulance in his responses to cross-examination, all indicate he has a bit more growing up to do. The mother demonstrated real lack of insight, and indeed immaturity, in unilaterally relocating with [X].
[X]’s stepfather, Mr S, impressed me by his commitment to the mother, to [X], and to their new baby. Fatherhood is a new experience for him, and he too has much to learn. This was exemplified in his answers to questions in cross-examination, about [X] calling him “Dad”, and the confusion this must cause in [X]’s mind.
The paternal grandmother, Ms R, was an impressive witness who demonstrated to me that whenever [X] is in her father’s care, the father is well supported by the paternal grandmother.

The Family Report

A Family Report was prepared by Family Consultant Ms S and is dated 3 February 2011. It follows the familiar format for these reports. The Family Consultant interviewed the parents, together and separately, and observed [X] with both her parents individually, as well as interviewing her alone. The Family Consultant interviewed the paternal grandparents and observed [X] with them. She separately interviewed Mr S and observed [X] in his presence.
The concerns that I have expressed above about the parents’ inability to manage their conflict and inability to communicate, is plainly reflected in the Family Report at, for example, paragraphs 8 and 9.
8. Mr Radcliffe (born [in] 1981) and Ms Earle [sic] (born [in] 1982) were interviewed together. They appeared uncomfortable, had minimal eye contact and regularly disagreed about comments the other made. Each reported that they had not been in the same room for years with the exception of requirements though these Court matters. Although the mother and father generally agreed to the incidences as outlined in the mother’s affidavit material, the father minimised his involvement and alleged that the mother was also a contributor to the incidences. He minimised the emotional impact on Ms Earle and believed that the information should not have been included in the affidavit material, because he said, it is in the past.
9. The parents agree that they rarely communicate and when they “absolutely have to” they feel it leads to arguments. Most of their communications occur on the telephone at times after [X] has spoken with her father. Ms Earle [sic] said that she would like to have a better parenting relationship with Mr Radcliffe, while Mr Radcliffe does not think that he and Ms Earle will ever improve their relationship. The parents agreed that there is not one issue that they have successfully negotiated together.
The mother’s reasons for not wishing to remain in [N] are very neatly summarised at paragraph 21 of the Family Report:
21. Ms Earle does not believe that she can cope with living in the [N] area. She said that it would place her in significant financial hardship including having to financially support herself and [X]. She said that her ability to work will decrease after giving birth which will place more financial strain on her position. Ms Earle said that it will also include her, as yet unborn child, growing up, largely without her or his father. Ms Earle believes that she has no family support and minimal friends in the [N] area. She believes that while she remains in the [N] area, she will continue to feel under the continued control of Mr Radcliffe. If she were to live in Brisbane, Ms Earle believes that she would have the financial freedom to be a stay at home mother, would have the support of her fiancé/husband and his family, her family and would be in an emotionally better position to provide for [X] and, when the time comes, her unborn child. Despite Ms Earle’s concerns about living in the [N] area, she said ‘I would and could never leave [X]” and she said that she would live with [X] wherever [X] lives.

The following emerged from the Family Consultant’s interview with [X]:
30.    [X] (aged 8 years 4 months) presented as talkative and but somewhat sad. She described problems with her friends at school and of missing a close friend she had made whilst living in Brisbane.
31.    [X] described a close relationship with her mother, identifying her as someone who soothes her when she feels sad or hurt, who understands her and who she can talk to about her problems. She consistently identified her mother as a containing and consistent person in her life. [X] said that it is “very important” for her to spend lots of time with her mother and would feel “scared” and “not too happy” if she didn’t see her mother often.
32.    [X] said that she enjoys the time that she spends with her father, “Granny” (paternal grandmother) and “Pa” (paternal grandfather). [X] said that when her father is unable to care for her, her “Granny and Pa” are there and that they often take her to see her “Aunty [name omitted]” (paternal aunt) which is “great”. [X] spoke consistently about her father, Granny and Pa together and identified feeling close to each of them.
33.    [X] said that she feels “sad” because she is not with “my family” (this was meant as her mother, Mr S and herself). She said that she is worried about her mother and her mother’s baby as her mother wants to be with Mr S. [X] said that she misses “[first name omitted]” (Mr S). [X] remembers feeling “really happy” when she lived in Brisbane and she said on several occasions during her interview that she wanted to return with her mother to live with Mr S. She said that she would miss her father and his family (“I will be a bit upset”) though added “I will be OK” as she would be able to see them in the school holidays.
The Family Consultant made the following observations of [X]’s interaction with her parents:
34. [X] was observed with her mother then with her father. In each observation she was confident, talkative and cheeky. She was observed to be at ease with each parent and each parent appeared child focused and competent in their interactions with [X]. The observations each had a rhythm as would be expected of a young girl with a reported positive relationship with each parent. The observation continued similarly when [X] was observed with her paternal grandparents and father, and then later with [X] and Mr S.
The Family Consultant’s evaluation is contained at paragraphs 35-40, inclusive:
35.    [X]’s main relationship is with her mother, who she identified as a stable, loving and essential figure in her life. It is clear that she ought to remain living with her mother in the future.
36.    [X] has a significant and positive relationship with her father and his extended family, especially her paternal grandparents. This is based on what appears to be a solid and consistent past relationship with them. She is of an age and appears to have the confidence to feel, if necessary, that she can sustain her important relationships with them from a distance. If [X] were to relocate interstate with her mother, consideration ought to be given to structured boundaries that support [X] in maintaining her relationships with her paternal family. These would include, if she were to relocate, structured time in the school holidays with her father and his family, regular and child focused telephone/Skype communications, the paternal family attending the child’s area of living and the father being aware of and included in [X]’s schooling and other activities.
37.    [X] has a view of wanting to return to live in Brisbane. Although she lacks the developmental maturity for these views to be given significant weight, it is noted that she considers her experience of living in Brisbane as a positive and happy one. Her confidence in being able to do so and her eagerness to live in Brisbane are likely to make the relocation, if it occurs, a positive one for [X].
38.    Should [X] remain living with her mother in [N], there are concerns regarding the impact on [X] of the mother’s financial and emotional insecurity which is likely to intensify when the mother gives birth. At this time, the mother will have the added responsibility of caring for a newborn with limited support, including the father of the newborn being unavailable. Of particular concern is the mother being without secure accommodation. These factors are likely to reduce the mother’s ability to emotionally support [X]. There are also concerns that this is against [X]’s views and continues to, in her eyes, split her perceived family. Should [X] remain in [N], she would be able to continue spending significant time with her father and paternal grandparents, something which has predominantly occurred since separation.
39.    Should [X] relocate to Brisbane, she will be where she and her mother want to be. Ms Earle [sic] believes that she would have both financial and emotional security, which would likely positively impact on [X]. [X] would not, however, be able to maintain the same level of time with her paternal family.
40.    Of special note is the poor state of the parental relationship. The most important factor in children’s wellbeing post parental separation is the ability of these parents to implement a positive co-parenting relationship. The better able the parents are in communicating and negotiating issues regarding their child in a respectful and inclusive manner the greater permission, containment and support they offer their child. Mr Radcliffe and Ms Earle report a complete lack in ability to communicate about issues regarding [X], a history of intense and at times abusive behaviour, minimal trust and little hope of any improvement. The parents are urged to improve their ability to improve their relationship, in order to be able to meet the basic requirements for [X], including being able to communicate and sort out problems about her when needed.
The Family Consultant makes the following recommendations:
41.    It is recommended that the parents have equal shared parental responsibility of [X]. This includes the father receiving school correspondence and being aware of where [X] is living and what extra curricular activities she is involved in.
42.    It is recommended that [X] live with her mother.
43.    It is recommended that, should [X] relocate with her mother to the Brisbane area, she spend time with her father and paternal grandparents:
a. for 10 days in each school mid year holiday period;
b. for 20 days in each Christmas school holiday period (and each alternate year to include Christmas);
c. the father and/or paternal grandparents, when able, spend time with [X] in her local area;
d. and speak with Mr Radcliffe and/or the paternal grandparents twice a week, and that [X] is to call her father and father’s family when she wishes.
44.    It is recommended that, should [X] continue to live in the [N] area, the interim parenting arrangement continue.
The finely balanced nature of the case is reflected in the Family Consultant’s recommendations. She was cross-examined. Whilst this evidence was useful in expanding on some of the matters referred to in the report, nothing in the cross-examination detracted from the Family Consultant’s basic position that she could not make a recommendation either way.

Meaningful Relationship

The first of the primary considerations is the benefit to [X] of having a meaningful relationship with both of her parents. There is no doubt that the evidence demonstrates that [X] enjoys this meaningful relationship with both of her parents. The question is whether relocation will alter this. On the mother’s proposal, the father will spend much less time with [X] and far less frequently. There will be periods of five weeks where there is no physical contact. Telephone contact would continue. The history of this form of communication has been marked by niggling, but not insurmountable problems, particularly when [X] was in Brisbane. Both parents are prepared to consider Skype.
Neither telephone nor Skype communication is a substitute for a personal communication. But in a case where the evidence indicates that [X] has such a strong relationship with her father, I have no reason to doubt that the existing meaningful relationship will continue even if there are physical absences of five weeks. The telephone and Skype communication will simply assist to maintain, if not strengthen the meaningful relationship that already exists. Thus, whilst the mother’s proposal presents the greatest possible challenge to the meaningful relationship, I am satisfied that even on her proposal, [X]’s meaningful relationship with her father will subsist. This consideration is therefore, not of itself determinative of the ultimate issue before the court. Whilst it indicates that there is no obstacle to an adoption of the mother’s proposal from the perspective of meaningful relationship, it does not of itself determine that that is the best order to make.

Protecting the Child from Harm

Despite the evidence in this case about the father’s past drug use, his excessive, occasional consumption of alcohol, and the level of conflict between the parents that has at times in the past, involved physical and emotional abuse and some controlling behaviour, it is clearly not a part of the mother’s case that these are matters determinative of the issue of whether relocation should be allowed. As I have indicated above, she seeks no orders in relation to these matters. She is quite affirming of the father’s parenting of [X], and recognises [X]’s strong relationship with her father. In these circumstances, the matter before the court does not raise any issues about protecting a child from harm.

Any Views Expressed by [X]?

The Family Consultant’s observations of [X], and her interview, can be interpreted as suggesting that [X] has a view that she would prefer living with her mother and her step-father in Brisbane. This is consistent with the mother’s evidence and that of her husband. The Family Consultant has doubts about [X]’s maturity to be able to express such a view and for it to receive weight. I think that is the relevant issue, i.e. the weight that [X]’s views should receive.
I take it into account in a general sense. I infer that [X] would not be unhappy if she moved to Brisbane, though she would clearly miss her father and paternal grandparents. However, this consideration is by no means determinative of its own right because of the concerns I have about [X]’s maturity. Also, despite the resilience that I have already observed about [X], she is aware of her parents’ conflict and thus there is a danger in placing undue weight on her views in this context.

Nature of Relationships

As indicated above, [X] has very good relationships with both her parents, the paternal grandparents, and her step-father, Mr S. On the mother’s proposal, she will spend much less time with her father and grandparents and, as [X] herself indicated to the Family Consultant, she will miss them. On the facts of this case however, such is the strength of the relationship between [X] and her father, and even her grandparents, I am not concerned that the relationship will be lost because of a reduction in the frequency of contact.
On the father’s proposal, by contrast, I think there is a real risk in the change of the nature of [X]’s relationship with her mother. Her mother will be alone in [N], with less family support than if she were in Brisbane, at a time when she is separated from her husband, has temporary accommodation, has the primary care of [X] and will give birth to a new child. This is a time of great vulnerability for the mother and it is inevitable that her relationship with [X] will be affected. For one thing, she will be less available because of the demands of a new child. This, of course, occurs even in intact families, but the affect is greatly exacerbated because of the reasons I have set out above.
The evidence indicates that Mr S cannot relocate to [N] in the short term, though I have no doubt that he would be able to take the leave needed to attend at the time of birth. The period after the birth of the child is just as difficult. It is a period of adjustment for [X] but becomes, in my opinion, far more problematic when her mother is coping with so many other things. Having regard to these circumstances, I am satisfied that the mother’s proposal will not have an impact on the nature of [X]’s good relationship with her father and grandparents. Conversely, the father’s proposal may well lead to a great period of vulnerability for the mother and [X], which is ultimately not in [X]’s best interests. This consideration, therefore, favours the mother’s proposal.

Willingness and Ability to Facilitate and Encourage Continuing Relationship

The evidence contains several examples of the father’s concerns in this regard. In short, he fears that if relocation is permitted, that over a period of time, his relationship with [X] will diminish as a result of the mother’s failure to encourage it. From his perspective, the clearest example of this is the mother’s unilateral decision to relocate. He is well entitled to think that, if she were prepared to do this during the course of court proceedings and thereby subject both [X] and herself to such high levels of dislocation, why would she not seek to subvert [X]’s relationship with him, from the comfort and safety of the distance, and in circumstances where the pressures can be far more subtle and covert.
The father’s case points to some niggling issues that took place with contact whilst [X] was in Brisbane, as well as to both the mother and Mr S’s evidence about [X] calling Mr S, “Dad”. The father’s concerns are therefore well demonstrated by this evidence. Is there substance to the father’s concerns?
The mother says that she will support this relationship, which she herself describes as a good one. The unilateral relocation was clearly an immature, ill considered act. Her proposal for the father to spend time with [X] is arguably more generous than the Family Consultant’s proposal. I found the mother to be genuine in her evidence about wanting to support the father’s relationship with [X]. In these circumstances, whilst I can certainly understand why the father would have serious concerns about the mother’s willingness to support his ongoing relationship with [X], I am satisfied that she will do so.

Likely Effect of Change

The mother’s proposal presents the prospect for the greatest change for [X] because she will be taken away from the familiar environment at [N], her school and friends, her father and grandparents. To offset this, she will return to an environment in which her mother will clearly be happier and feel better supported, and it will not be an entirely unfamiliar environment, even though I doubt that she will return to the school she was attending for a period last year.
The father’s proposal presents the prospect of least change for [X], except to the extent that her mother will suffer a clear unhappiness as well as a period of vulnerability which I discussed above. Clearly, change needs to be considered in the context of both adverse and beneficial implications. If the case were to be decided purely by reference to change, then relocation might not be permitted. The obvious benefits to [X] of making the order her mother proposes is that her mother will be better supported and happy, with the flow on benefits to [X].
At this point it should be noted that the father did not rule out the possibility of himself relocating to Brisbane to be closer to [X]. I am satisfied that it is not something that he had given close consideration to but equally, it was not something he was prepared to rule out. Indeed, it is a sufficiently realistic possibility that I intend to make orders that the existing shared parenting arrangement apply should the father move closer to [X] and where it is reasonably practicable for the current shared care arrangement to continue.
Looking at the father’s personal and financial circumstances, if [X] is permitted to relocate, there does not seem to be much in [N] to keep him there other than his work. If he could find suitable alternative employment in Brisbane, there is no reason why he could not go. That is not to say that this is his preference.

Issues of Practical Difficulty and Expense

On the mother’s proposal, [X] would be travelling from Brisbane to Sydney by air, and then by car to [N], during school holidays and once each term. The mother indicated in cross-examination that she accepted that, at the very least, she would be contributing to half the cost of [X]’s travel. Both parents were aware, or should have been aware that the costs of travel was a relevant issue for the court to consider, but neither parent produced any evidence of their financial circumstances.
I am entitled to infer therefore, that whatever order I make about contributing towards the cost of travel, they believe they will be able to manage. I am prepared to take judicial notice of the availability of frequent and low cost airfares connecting Sydney and Brisbane, particularly if the travel is organised well in advance. I also recognise that it will actually take longer for [X] to get from Sydney to [N] than it will for her to get from Brisbane to Sydney.
There are clear issues of practical difficulty and expense but none which, in my opinion, cannot be overcome, particularly having regard to the obvious benefits to [X] of spending time with her father and grandparents. I therefore find that the issues of practical difficulty and expense do not affect her right to maintain personal relations and direct contact with her father on a regular basis. In the circumstances of this case, should the ultimate analysis of the relevant consideration lead to an exercise of discretion in the mother’s favour, I would order the cost of air travel to be shared equally between the parents, whilst acknowledging that this may well give the father the opportunity to seek an offset in relation to child support.

Capacity of Parents

Despite the assertions that each of the parents made against each other about their involvement in drug, alcohol and violence and abuse at earlier stages during their relationship, and to a lesser extent in the post-separation period, the absence of any orders that they seek against each other in this regard means that there are no issues of parental capacity. Indeed, the evidence does indicate to me that both have the capacity to provide for [X]’s needs including her emotional needs.
The one caveat to this is that the father’s proposal will involve, as I have indicated above, the mother becoming much more vulnerable and thus less able to provide for [X]’s needs because of what she will consider to be her unhappiness and sense of isolation in [N], in what she will consider unfriendly and unsupported territory whilst her husband is in Brisbane.

Maturity, Sex, Lifestyle and Background

I have already commented on the lack of maturity that both parents have demonstrated. One can only hope that as time goes by, this will further dissipate.

Attitudes to the Child and to the Responsibilities of Parenthood

As I have indicated in my comments above, there are plenty of examples from the past which could be used to demonstrate that both the father, and even the mother at times, have demonstrated poor attitudes about parenting, and possibly even irresponsibility, but these are matters in the past and do not govern the future. The matters to which I am referring to include drug taking, consumption of excess alcohol, and the conflict during the relationship to which [X] was exposed, including some violence, abuse, and possibly even controlling behaviour. These are not matters that currently apply.

The Order Least Likely to Lead to the Institution of Further Proceedings

There is always the risk of further proceedings. Indeed, the risk is probably higher if relocation is permitted. I have no doubt that the father would initiate contravention proceeding if the mother did not strictly adhere to the orders I make for contact. She has already demonstrated an ability not to comply with a parenting agreement that reflected a long standing shared care arrangement. I accept that this is a relevant consideration but I must say that I form the impression that the mother would abide by any orders that I make, including orders for contact. In these circumstances, this consideration is not determinative of itself.

Order in the Best Interests of [X]?

This is a finely balanced case. It is ultimately an exercise of discretion. I believe that the order in the best interests of [X] is to adopt the mother’s proposal for relocation. This is because I am satisfied that the mother’s proposal will not have an impact on [X]’s relationship with her father and grandparents and that [X]’s relationship with her father is strong enough to be able to be sustained, notwithstanding the significant changes that will take place in her life. A minor consideration is that it is consistent with her views. To adopt the father’s proposal would be to expose the mother, and therefore [X], to a considerable period of vulnerability in their lives arising out of the mother’s separation from her husband, her unhappiness with the outcome of the case, her sense of isolation in [N], all occurring at a time when a new child is new born. This vulnerability for the mother may have an impact on her relationship with [X] and on her capacity to care for [X].
Whilst I have some concerns about the mother’s willingness to facilitate and encourage an ongoing relationship with the father, I am satisfied that she will comply with court orders. On balance therefore, I believe it is in [X]’s best interest that she be allowed to relocate with her mother to Brisbane. I am satisfied that an order for contact which provides generous school holiday time, one weekend in the middle of each school term, as well as frequent telephone and even Skype contact, will continue to secure [X]’s relationship with her father and even grandparents.

Equal Shared Parental Responsibility

Both parents invite me to make an order for equal shared parental responsibility. This is entirely appropriate in the circumstances of this case. However, it triggers a consideration of equal time and/or substantial and significant time pursuant to section 65DAA. Of course equal time is not a proposal that was advanced by either parent, and I agree that it would not be in [X]’s best interest nor would it be reasonably practicable, except on a scenario whereby [X] was not permitted to relocate. For the reasons that I have articulated above it is in [X]’s best interests that relocation be permitted. In any event, equal time is not reasonably practicable under section 65DAA(5)(b) to (c). Regrettably, these parents do not have a capacity to implement an arrangement for equal time and they do not have a capacity to communicate with each other to resolve difficulties that might arise in implementing an arrangement for equal time.
My consideration then turns to substantial and significant time. I recognise that the current parenting arrangement is a successful substantial and significant time care arrangement. It provides to the father, and to [X], something which is very important – involvement in the day to day minutiae of [X]’s life. In an ideal situation that would be continued, but the only way that that is possible is if the mother were not permitted to relocate. For the reasons I have articulated above, it is not in [X]’s best interests for her mother not to be allowed to relocate, and this means that a substantial and significant time arrangement is not in [X]’s best interests, except in circumstances where the father chooses to relocate to Brisbane.
Whilst even he describes this as not out of the question, but otherwise a remote possibility, I intend to make orders that will give him this possibility, should he move closer to [X]. Other than on this scenario, an order for substantial and significant time is not in [X]’s best interests for the reasons I have articulated above. I am not even sure that the father’s proposal, which is otherwise a substantial and significant time proposal, would be reasonably practicable. I would have thought that if the mother is not permitted to relocate, the logical progression of the parents’ relationship would be a deterioration in their capacity to implement even the current parenting plan they have.
For the same reasons, I would expect a deterioration in their capacity to communicate. This must follow if the mother, as a result of not being allowed to relocate, experiences the vulnerability which I predict for her arising out of separation from her husband, her unhappiness about the proceedings, her isolation in [N], and the birth of a child. Thus, I find that even on the father’s proposal, a substantial and significant time arrangement would not be reasonably practicable, for the reasons articulated above.
The mother’s proposal satisfies, in a technical sense, the definition of “substantial and significant time” contained in section 65DAA(3) because it at least notionally includes one weekend during the school term that involves an after school pickup, thus providing, at least in a theoretical sense, an opportunity for the father to be involved in [X]’s school life. I record here, however, that even if I am wrong and the mother’s proposal does not amount to a proposal for substantial and significant time, I still regard her proposal as one that is in the best interests of [X]. In other words, even if it is not a proposal for substantial and significant time, I would nonetheless consider her proposal the best one in the circumstances.
Accordingly, I propose to make orders broadly consistent with the mother’s proposal. However, during the one weekend of each school term when the father can spend time with [X], I am going to suggest that he return her to school on Monday morning, if he so desires, just because it gives him the opportunity to be involved in [X]’s school life just that little bit more. Whilst I do not intend to make orders in relation to what I am about to say, I do ask the father to consider the practicalities of this. If he does, in fact, intend to return [X] to school on Monday morning, my sense is that it would be impracticable to fly up from Sydney on Monday morning, and that both he and [X] would be better off spending that weekend, or part thereof, in Brisbane.
The mother proposes that the father spend time with [X] for the entire gazetted Queensland school holidays, except for Christmas school holidays. This is more generous than the Family Consultant’s recommendation of
10 days in each mid year school holiday period. Nonetheless, I think it is appropriate, particularly as the order proposed involves a return to the mother on the Friday immediately prior to school resuming.
In relation to Christmas school holidays, the mother proposes one half of each school holidays, whereas the Family Consultant proposes

20 days. I prefer the mother’s proposal in this regard. It will give to [X] about three weeks each year, which she can spend with her mother, brother and stepfather.
The mother proposes an order that travel costs be shared equally. I agree that is the best principle, but I prefer a system whereby each parent arranges for the cost of the travel of [X] to their respective residence. Thus, for example, the father would pay for [X]’s airfare from Brisbane to Sydney and the mother from Sydney to Brisbane. They should notify each other of the arrangements made no less than 28 days before the date of the travel. Given the problems that these parents have with communication, I would regard as unworkable an arrangement whereby one pays for the total cost of the air travel, and is then reimbursed by the other.
The order proposed by the mother for parental communication lacks specificity. I will amend the order so that it provides for at least weekly telephone conversations between [X] and her father whilst she is in Brisbane, and one telephone call between [X] and her mother on the weekends when she is with her father, as well as twice weekly phone calls between [X] and her mother when she is on school holidays with the father. [X] is probably already at an age, or will shortly be so, when email, Skype and Facebook communication will become a very standard means of communicating for her. I will make an order, the effect of which is that both parents do all things necessary to establish a Skype communication facility if they do not already have one.
The Family Consultant could see the benefit of the parents attending a parenting orders program even if relocation were permitted. I intend to make such an order, even if it is necessary for the parents to attend individually. Whilst I think both the Family Consultant, and even I, in these reasons, am pessimistic about the prospects of the parents being able to improve their communication that does not mean they should not try. Ultimately, the beneficiary of this will be their daughter.
I note that the mother seeks permission to relocate to Queensland in her orders, even though the evidence in her case was clearly based on a relocation to Brisbane. In these circumstances, I intend to make an order permitting relocation to Brisbane. I am conscious of the possibility that the wife’s husband, Mr S, could be [relocated] with [employer omitted] at some time in the future. Mr S himself mentioned Townsville as one of the [possibility].
I do not intend, by these reasons, to authorise [X]’s relocation to Townsville, or any other place in Queensland outside of Brisbane. The mother ran her case on the basis that she wanted relocation to Brisbane, and that is the basis on which I am prepared to make the orders. There are obvious reasons for this. The logistical challenges involved in travel to Townsville, for example, from [N], are far greater than travel to Brisbane. In the mother’s case, she replied upon the support that she would receive in Brisbane, but there is no evidence about what support she would receive elsewhere. Hence, the order for relocation will be to Brisbane and not to Queensland generally.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date: 31 May 2011

Annexure A

Orders Sought by the Respondent Mother at the Hearing

Orders for Parental Responsibility

That the parties have equal shared parental responsibility for the child, [X], born [in] 2002.

The Mother has responsibility for decisions as to the child’s day to day care, welfare and development when the child is living with or spending time with her.

The Father has responsibility for decisions as to the child’s day to day care, welfare and development when the child is spending time with him.

The child live with the Mother.

The child be permitted to relocate to Queensland with the Mother.

The child spend time with the Father as follows:-

(a)For one weekend during each Queensland school term, as agreed between the parties, and failing agreement, from the conclusion of school Thursday until 5.00pm Sunday, on the weekend after Week 5 of the Queensland gazette school term;
(b)For the entire gazetted Queensland school holiday period, with the exception of the Christmas school holiday period, commencing on the first day of the school holiday period and concluding on the Friday immediately prior to school resuming;
(c)For one half of the gazetted Queensland Christmas school holiday period, as follows:-
(i)For the first half in even numbered years, commencing the first day of the Christmas school holiday period; and
(ii)For the second half in odd numbered years; and

(d) Such other times as agreed between the parties.

That in addition to living with the Mother in Order 4, the child is to spend time with the Mother on the following occasions of special significance:-

(a)For one half of the gazetted Queensland Christmas school holiday period, as follows:-
(i)For the first half in odd numbered years, commencing the first day of the Christmas school holiday period; and
(ii)For the second half in even numbered years; and

(b) Such other times as agreed between the parties.

That for the purposes of the implementation of these Orders, the Father is to collect the child from the Sydney Domestic Airport Terminal, or the closest domestic airport terminal to where the Father is living, unless otherwise agreed, at the commencement of his time with the child.

That for the purposes of the implementation of these Orders, the Father is to deliver the child to the Sydney Domestic Airport Terminal, or the closest domestic airport terminal to where the Father is living, unless otherwise agreed, at the conclusion of his time with the child.

The child is to have the following parental communication:-

(a)      Reasonable telephone conversation with the Father as the child may request and the Mother will facilitate the making of such telephone calls;
(b)      Reasonable telephone conversation with the Mother as the child may request and the Father will facilitate the making of such telephone calls;
(c)     Electronic communication between the Father and the child, such as emails or Skype, at all reasonable times; and
(d)      Privacy during telephone conversations with both parents and each parent is to ensure that they facilitate this.

Both parents will ensure that they keep each other informed as soon as it is reasonably practical of:-

(a)      Any medical problem or illness suffered by the child whilst in each parent’s care;
(b)      Any medications that have been prescribed for the child;
(c)      Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding the child;
(d)      Any significant social, school or religious functions which the child is to attend;
(e)      Their current contact telephone numbers (including both landline and mobile, if applicable) and their current residential address; and
(f)      Any other important matters relevant to the welfare of the child.

Each parent is to advise the other parent of any changes to their residential address or telephone numbers within seven (7) days of the change occurring.

Each parent will authorise any relevant health or educational professional to provide the other with copies of school reports and any other reports, information and documentation relating to the health and education of the child.

That the parents will share equally the travel costs associated with transporting the child in between the Mother and Father’s respective residences, with full payment to be made no later than fourteen (14) days prior to the date of the child’s intended travel date.

The Mother and Father will ensure that they keep each other informed as soon as it is reasonably practical of:-
(a)        Any medical problem or illness suffered by the child whilst in each parent’s care;
(b)        Any medications that have been prescribed for the child;
(c)        Any specialist medical appointments with any medical doctor,
psychiatrist, psychologist, counsellor, or therapist regarding the
      child;
(d)        Any significant social, school or religious functions which the child is to attend;
(e)        Their current contact telephone numbers (including both landline and mobile, if applicable) and their current residential address;
(f)          Any other important matters relevant to the welfare of the child.

Each parent is to advise the other parent of any changes to their residential address or telephone numbers within seven (7) days of the change occurring.

Each parent will authorise any relevant health or educational professional to provide the other with copies of school reports and any other reports, information and documentation relating to the health and education of the child.

That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the child and that the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the child.

That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of the child and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of the child.

Annexure B

Father’s Orders Sought

1.That the mother and the father have equal shared parental responsibility for the child [X] born [in] 2002.
2.That the mother be restrained from relocating to any area outside a 30km radius from [N] without the express written consent of the father.
3.That the child live with the mother as follows:
a.   In week 1 from after school or 3.00pm on a non – school day on Monday until before school or 9.00am on a non – school day on Friday, and each alternate week thereafter.
b.   In week 2, from after school or 3.00pm on a non – school day on Friday until before school or 9.00am on a non – school day on Wednesday, and each alternate week thereafter.
c.   At any other times as agreed between the parties.

4.That the child live with the father as follows:
a.   In week 1, from after school or 3.00pm on a non – school day on Friday until before school or 9.00am on a non – school day on Monday, and each alternate week thereafter.
b.   In week 2, from after school or 3.00pm on a non – school day on Wednesday until before school or 9.00am on a non – school day on Friday, and each alternate week thereafter.
c.   At any other times as agreed between the parties.

5.That the child spend time with the mother as follows:
a. From 5.00pm on Christmas Eve until 1.30pm on Christmas Day in all even numbered years.
b. From 2.30pm on Christmas Day until 5.00pm on Boxing Day in all odd numbered years.

6.That the child spend time with the father as follows:
a. From 1.30pm on Christmas Day until 5.00pm on Boxing Day in all even numbered years.
b. From 5.00pm on Christmas Eve until 1.30pm on Christmas Day in all odd numbered years.

7.That for the purpose of the implementation of these orders the father will collect the child from school or from the mother’s residence at the commencement of the time the child lives with or spends time with him, and the mother will collect the child from school or from the father’s residence at the commencement of the time the child lives with or spends time with her.
8.That the mother and the father notify one another any medical issues or emergencies in relation to the child as soon as possible.
9.That the mother and the father keep one another advised of their residential address and contact telephone number, and advise of any change within 72 hours

OR IN THE ALTERNATIVE

10.That the mother and the father have equal shared parental responsibility for the child [X] born [in] 2002.
11.That the child live with the father.
12.That the child spend time with the mother as follows:
a. For half of all NSW gazetted school holiday periods, being the first half in all even numbered years and the second half in all odd numbered years;
b. Any other times as may be agreed between the parties from time to time.

13.That the parents equally share the travel costs associated with the child travelling to spend time with the mother.
14.That the mother and the father notify one another any medical issues or emergencies in relation to the child as soon as possible.
15.That the mother and the father keep one another advised of their residential address and contact telephone number, and advise of any change within 72 hours.