Renwick and Renwick
[2018] FCCA 154
•24 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
RENWICK & RENWICK [2018] FCCA 154
Catchwords:
FAMILY LAW – Application for final parenting orders – child 9 years old – mother primary carer – issues relating to family violence during the relationship – mother wishing to relocate to (omitted) – majority of extended family members living in (omitted) – child has close relationship with father – child has close relationship with half sibling and most extended family members who live in (omitted) – whether father can relocate to (omitted) – whether mother’s new partner can relocate to (omitted) – child expressing strong views against relocating to (omitted) – consideration of section 60CC factors – advantages and disadvantages of relocation – final orders made for child to relocate to (omitted) at the commencement of the school year in January 2019.
Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DA, 65DAC
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Cases cited:
A v A: Relocation Approach (2000) 26 Fam LR 382
Adamson & Adamson [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160
Bolitho v Cohen (2005) 33 Fam LR 471
Boyle & Zahur and Anor (No 2) [2017] FamCAFC 263
Cox & Pedrana (2013) 48 Fam LR 651
East & Loewe [2015] FamCA 517
Hamish & Brighton [2014] FamCAFC 242
Jatasra & Khosla [2016] FamCA 865
Kaule & Brown [2015] FamCA 480
Malcolm & Monroe and Anor (2011) FLC 93-460
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Mordon & Paul [2014] FamCAFC 222
Morrall & Olmos [2017] FamCAFC 2
MRR & GR (2010) 240 CLR 461
Muldoon & Carlyle (2012) FLC 93-513
Oswald & Karrington [2016] FamCAFC 152
Sayer & Radcliffe and Anor (2012) 48 Fam LR 298
Soulos & Sorbo [2015] FamCA 196
Starr & Duggan [2009] FamCAFC 115
U v U (2002) 211 CLR 238
Zahawi & Rayne [2016] FamCAFC 90
Applicant: MS RENWICK
Respondent: MR RENWICK
File Number: CAC 1973 of 2015
Judgment of: Judge Tonkin
Hearing dates: 3 & 4 October 2017
Date of Last Submission: 4 October 2017
Delivered at: Canberra
Delivered on: 24 January 2018 REPRESENTATION
Counsel for the Applicant: Ms Davis
Solicitors for the Applicant: Robinson McGuiness
Counsel for the Respondent: Mr Millar
Solicitors for the Respondent: Farrar Gesini Dunn ORDERS
(1)The parents have equal shared parental responsibility for the child, X born (omitted) 2008 (“X”).
(2)Until the commencement of the school year in January/February 2019:
(a)X shall live with her mother in (omitted).
(b)X shall spend time with her father during school terms:
(i)Each alternate weekend from after school (or 3.00pm) on Friday until before school (or 9.00am) the following Tuesday; and
(ii)Each Thursday from after school (or 3.00 pm) until 7.00 pm.
(c)Changeover shall occur at school and on Thursday the father will deliver X to her mother at the conclusion of time.
(d)Unless otherwise agreed between the parties, X shall spend time with the parties during school holiday periods as follows:
(i)With her mother for the first half of all school holiday periods commencing in years ending in an even number, and the second half of all school holiday periods commencing in years ending in an odd number; and
(ii)With her father for the second half of all school holiday periods commencing in years ending in an even number, and the first half of all school holiday periods commencing in years ending in an odd number.
(3)That for the purposes of the preceding Order, in the absence of any written agreement between the parties to the contrary, the following Orders apply:
(a)The first half of the school holiday period is deemed to commence at the end of classes on the last day of school;
(b)The second half of the school holiday period is deemed to conclude at the beginning of classes on the first day of school;
(c)One half of the school holiday period is to be calculated by dividing the total number of days X does not attend school by 2, and changeover will occur at 5.00pm on that day. If the number of days are not even, the father is to have the extra day in even years and the mother is to have the extra day in odd years.
(d)In the event that changeover cannot occur at school the party with whom the child is to spend time shall collect the child from the home of the other parent at the commencement of time and return the child to the other parent at the conclusion of time.
(4)Notwithstanding these Orders:
(a)X shall live with her mother from 9.00am until 5.00pm each Mother’s Day and with her father from 9.00am until 5.00pm each Father’s Day;
(b)If the mother’s birthday or the father’s birthday fall on a day when X would otherwise be living with the other parent, the following Orders apply:
(i)That if the mother’s or father’s birthday falls on a weekday, each of the parents take all reasonable steps to ensure that X spends time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing agreement, from 4.00pm until 7.00pm; and
(ii)That if the mother’s or father’s birthday falls on a weekend, each of the parents take all reasonable steps to ensure that X spends time with the parent having the birthday from 9.00am until 5.00pm on the birthday.
(c)On X’s birthday each year the parent with whom X is living make her available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement, from 5.00pm until 7.00pm
(d)X shall spend time:
(i)With her mother from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2018 and each alternate year thereafter;
(ii)With her father from 3.00pm on Christmas Day until 3.00pm on Boxing Day in 2018 and each alternate year thereafter;
(iii)With her father from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2019 and each alternate year thereafter;
(iv)With her mother from 3.00pm on Christmas Day until 3.00pm on Boxing Day in 2019 and each alternate year thereafter;
(5)Until the commencement of the January/February 2019 school year:
(a)Neither party shall change X’s place of residence from the (omitted) area without first obtaining the written consent of the other party; and
(b)Neither party shall change X’s school without the consent of the other party.
(6)From the commencement of the school year in January/February 2019:
(a)X shall live with her mother in (omitted).
(b)In the event that the father relocates to (omitted), X shall spend time with her father during school terms:
(i)Each alternate weekend from after school (or 3.00pm) on Friday until before school (or 9.00am) the following Tuesday; and
(ii)Each Thursday from after school (or 3.00 pm) until 7.00 pm.
(c)In the event that the father continues to live in (omitted), X shall spend time with her father during school terms on the third Friday of each month from approximately 9.00 pm on Friday until 3.00 pm Sunday with the mother to deliver X to the father’s home at the commencement of time and the mother to collect X from the father’s home at the conclusion of time.
(d)Unless otherwise agreed between the parties, X shall spend time with the parties during school holiday periods as follows:
(i)With her mother for the first half of all school holiday periods commencing in years ending in an even number, and the second half of all school holiday periods commencing in years ending in an odd number; and
(ii)With her father for the second half of all school holiday periods commencing in years ending in an even number, and the first half of all school holiday periods commencing in years ending in an odd number.
(iii)Changeover shall occur at (omitted) with the parties meeting half way at a time to be agreed.
(7)That for the purposes of the preceding Order, in the absence of any written agreement between the parties to the contrary, the following Orders apply:
(a)The first half of the school holiday period is deemed to commence at the end of classes on the last day of school;
(b)The second half of the school holiday period is deemed to conclude at the beginning of classes on the first day of school;
(c)One half of the school holiday period is to be calculated by dividing the total number of days X does not attend school by 2, and changeover will occur at 5.00pm on that day. If the number of days are not even, the father is to have the extra day in even years and the mother is to have the extra day in odd years.
(8)Notwithstanding these Orders:
(a)Unless otherwise agreed X shall live with her father from 9.00 pm Friday until 3.00 pm Sunday on the Father’s Day weekend with the mother to deliver the child to the father’s home at the commencement of time and the mother to collect the child from the father’s home at the conclusion of time;
(b)The parent with whom the child is living on one of her parent’s birthdays shall ensure the child communicates with the other parent on his or her birthday.
(c)The parent with whom the child is not living on X’s birthday is at liberty to spend time with X on her birthday for a period of 3 hours in so far as spending time with X is reasonably practicable. In the event that spending time on X’s birthday is not reasonably practicable, that parent shall be at liberty to communicate with X on her birthday.
(d)From December 2019 in the event that the father does not live in (omitted) the father will ensure that X communicates with her mother on Christmas Day between 3.00 pm and 4.00 pm otherwise X will live with her father during the first half of the 2019 school holiday period and each alternate year thereafter including over the Christmas period.
(e)From December 2018 in the event that the father does not live in (omitted), the mother will ensure that X communicates with her father on Christmas Day between 3.00 pm and 4.00 pm otherwise X will live with her mother during the first half of the 2018 school holiday period and each alternate year thereafter including over the Christmas period.
(9)The parents be permitted to communicate via text message and email in relation to the care arrangements for, and welfare of, X.
(10)The parties shall forthwith engage a counsellor (and/or therapist) to assist X to prepare for her relocation to (omitted). Both parties shall co-operate with any reasonable requirements for X that the counsellor may suggest will prepare X for the relocation and the parties may participate in counselling sessions should the counsellor determine that such participation is beneficial to X.
(11)Each parent shall notify the other forthwith of any serious illness or injury affecting X, and be at liberty to contact any doctor or hospital treating her to obtain information.
(12)Each parent shall notify the other of the name of any general practitioner or paediatrician or other specialist who treats X whilst X is in that parent’s care.
(13)Neither parent shall say unkind or uncomplimentary things about the other to or in the presence or X, nor allow anybody else to do so.
(14)Both parents be and are hereby restrained from discussing these proceedings with or in the presence of X.
(15)To the extent that these parenting orders are inconsistent with the Apprehended Domestic Violence Order made by the Local Court of New South Wales on 22 February 2017, these orders prevail.
IT IS NOTED that publication of this judgment under the pseudonym Renwick & Renwick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRACAC 1973 of 2015
MS RENWICK Applicant
And
MR RENWICK Respondent
REASONS FOR JUDGMENT
Introduction
1.This matter involves one child X born (omitted) 2008 (now 9 years and 10 months). The parties separated in May 2013. From separation the parties reached agreement in relation to parenting arrangements for X without Court orders or a written Parenting Plan. X has lived with her mother since separation and has spent time with her father during extended weekends and school holidays. The mother commenced parenting proceedings on 10 April 2017 seeking orders that she be permitted to change X’s place of residence to (omitted). The father opposes X relocating.
2.The issues to be determined include:
·What order should be made with respect to parental responsibility;
·What parenting orders are in the child’s best interests including whether the mother should be permitted to relocate X’s place of residence to (omitted).
Legal principles
3.The following principles reflect the current law as it stands following the important amendments to the Family Law Act 1975(Cth) (“the Act”) contained in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth):
i. A Court must first identify the parties’ proposal(s) with respect to the future living arrangements for the child and then evaluate each proposal through the lens of the ‘best interests’ of the child principles contained in s 60CC. However, in making orders, the Court is not bound by the parties’ proposals and may formulate a proposal of its own if it considers it in the ‘best interests’ of the child to do so;[1]
ii. Like any other parenting matter, before making a parenting order a judge considering a relocation case must follow the legislative pathway and strictly apply all relevant provisions, including the presumptions contained in s 65DAA unless otherwise rebutted;[2]
iii. The proposed relocation should not be treated as a discrete issue in itself. Rather, the Court is required to consider the matter of relocation in the broader context of the proposal(s) of each party, as one factor among many guiding a determination in the ‘best interests’ of the child;[3]
iv. In making the above determination, the ‘best interests’ of the child is the paramount consideration but it is not the sole consideration. Other matters, such as the happiness and contentment of a party if allowed to relocate, may also be significant;[4]
v. The ‘best interests’ of the child must be weighed against other relevant factors including a parent’s right of freedom of movement and their other legitimate interests. However, where there is a conflict between these factors, the ‘best interests’ of the child will take precedence;[5]
vi. There is no requirement that a party wishing to relocate must provide ‘compelling reasons’ to justify the proposed relocation. Likewise, there is no onus on the party resisting the relocation to demonstrate reasons why the other party should not be allowed to relocate. Rather, the Court’s concern is what arrangements will promote the ‘best interests’ of the child;[6]
vii. Matters involving relocation emphasise the dual requirement of parenting orders to be in both the ‘best interests’ of the child (s 60CC) and to be ‘reasonably practicable’ (sub-ss 65DAA(1)(b) & (2)(b)). Given the “different matters” requiring consideration under these sections, a judge must specifically address the relevant matters going to both the ‘best interests’ of the child and the reasonable practicability of any proposals in the context of a relocation;[7] This may be achieved by cross-referencing to earlier discussion within the body of the judgment if such approach is made apparent;[8]
viii. Because each case presents different facts and issues for determination, no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance;[9]
[1] U v U (2002) 211 CLR 238, 260 [80]; Morrall & Olmos [2017] FamCAFC 2 [42].
[2] Sayer & Radcliffe and Anor (2012) 48 Fam LR 298, 311 [47] – [48]; Cox & Pedrana (2013) 48 Fam LR 651, 655 [15]; Hamish & Brighton [2014] FamCAFC 242 [34] – [36].
[3] Sayer & Radcliffe and Anor (2012) 48 Fam LR 298, 311 [47]; Muldoon & Carlyle (2012) FLC 93-513 [90].
[4] A v A: Relocation Approach (2000) 26 Fam LR 382, 407–9 [108]; Jatasra & Khosla [2016] FamCA 865 [25]; East & Loewe [2015] FamCA 517 [389] – [390].
[5] Bolitho v Cohen (2005) 33 Fam LR 471, 484 [72]; A v A: Relocation Approach (2000) 26 Fam LR 382, 407–9 [108]; Kaule & Brown [2015] FamCA 480, 17 [58].
[6] AMS v AIF (1999) 199 CLR 160, 191; Malcolm & Monroe and Anor (2011) FLC 93-460 [83]; U v U (2002) 211 CLR 238, 259 – 60.
[7] MRR & GR (2010) 240 CLR 461 [14]; Mordon & Paul [2014] FamCAFC 222 [80].
[8] Starr & Duggan [2009] FamCAFC 115 [38]; Mordon & Paul [2014] FamCAFC 222 [80].
[9] Morgan & Miles (2007) 38 Fam LR 275, 290 [79]; Soulos & Sorbo [2015] FamCA 196 [154]; Jatasra & Khosla [2016] FamCA 865 [27].
Documents relied on
4.The applicant relied on her affidavits filed on 28 August 2017 and 22 September 2017, the affidavit of her partner, Mr C, affirmed 29 August 2017 and the family report completed by Ms M dated 19 September 2017.
5.The respondent relied on his affidavit affirmed 13 September 2017, the affidavit of Mr P affirmed on 12 September 2017, the affidavit of Mr G affirmed 12 September 2017 and the family report completed by Ms M dated 19 September 2017.
Orders Sought
6.The applicant filed a Minute of Orders below however changes were made to the orders sought during submissions as recorded:
1. That the mother have sole parental responsibility for the child X born (omitted) 2008.
2. That the child live with the mother.
3. That the mother be permitted to relocate with the child to (omitted), NSW.
4. That following the father’s relocation to the (omitted) area, the child spend time with the father:
(a) During school terms:
i. Each alternate weekend from after school (or 3.00pm) on Friday until before school (or 9.00am) on Monday;
(b) During school holiday periods:
i. For half of each school holiday period applicable to the child, at time to be agreed between the parties; and
(c) On the child’s birthday ((omitted) 2008) or within three days either side of her birthday for a period of no less than 24 hours at times to be agreed between the parties.
5. That should the father choose not to relocate to the (omitted) area. The child spend time with the father on one weekend per month during school terms from 9.00pm on Friday to 3.00pm on Sunday, with the location of that time alternating between (omitted) and (omitted).[10]
[10] During submissions the mother amended this order so that the child spend time with her father once a month in (omitted) and such additional time if the father is able to travel to (omitted) or meet the mother half way no more than once per month.
(a) When the child spends time with the father in (omitted) during the school term, changeovers shall occur at (omitted) Public School in (omitted), or otherwise agreed between the parties in writing.
(b) When the child spends time with the father in (omitted) during the school term, changeovers shall occur at (omitted) Public School in (omitted), or otherwise agreed between the parties in writing.
6. Should the father choose not to relocate to the (omitted) area, the child spend time with the father for half of each school holiday period at times to be agreed between the parties.
(a) When the child spends time with the father during school holidays changeovers shall occur as agreed between the parties in writing, or otherwise at (omitted).
7. That notwithstanding the above Orders, the child spend time with the mother and father as follows:
(a) With the mother on Mother’s Day from 9.00am to 5.00pm;
(b) With the father on Father’s Day from 9.00am to 5.00pm[11];
[11] During submissions the mother amended this order so that the child would spend the weekend of Mother’s Day with the mother and the weekend of Father’s Day with the father
(c) At Easter:
i. With the father from 6.30pm on the Thursday before Good Friday to 5.00pm Easter Monday in 2017 and each odd year thereafter; and
ii. With the mother from 6.30pm on the Thursday before Good Friday to 5.00pm Easter Monday in 2018 and each odd year thereafter
(d) At Christmas:
i. With the father from 12.00 midday 24 December 2017 to 12.00 midday 26 December 2017 and each odd numbered year thereafter; and
ii. With the mother from 12.00 midday 24 December 2018 to 12.00 midday 26 December 2018 and each odd numbered year thereafter;
8. The parents shall keep each other informed of any change in the particulars of their residential address, landline telephone number, mobile phone number and if applicable, email address.
9. The parents shall advise each other as soon as possible, and no later than 2 hours after the event, by the best available means in the event of the following occurring to the child;
(a) Being seriously injured or falling seriously ill;
(b) Requiring urgent medical treatment from a doctor or ambulance; and/or
(c) Being admitted to hospital.
10. That immediately following relocation to (omitted) that the child will not have any telephone or social media contact with the father or members of the paternal family for a period of one month (this order was withdrawn in submissions).
11. Thereafter the father be permitted to have telephone contact with the child twice per week, between the hours of 6.00pm and 7.30pm.
12. That neither party shall make denigrating or disparaging comments about the other in the presence of the child.
13. That both parties are authorised to obtain all information and reports about the child’s health and wellbeing from medical and health practitioners engaged in the care of the child.
14. That this Order be an authority to all schools attended by the child to provide to both parents with information and notices, including but not limited to, reports, updates, invitations and photograph order forms for the child.
15. Both parents will provide the other with no less than 14 days’ notice of an intention to travel interstate with the child (outside of NSW or ACT) and not less than 6 weeks’ notice of an intention to travel internationally with the child.
16. In the event that either parent intends to travel internationally with the child:
(a) The travelling parent will arrange and pay for an Australian Passport Application for the child;
(b) The non-travelling parent will sign and return the child’s Passport Application to the travelling parent within 7 days of receipt (This order was made by consent at the hearing); and
(c) The travelling parent must provide to the non-travelling parent (not less than 2 weeks prior to the intended departure date) the following information:
i. An itinerary for the trip;
ii. Contact details for the child whilst overseas including a telephone number and email address; and
iii. A copy of the return airline tickets for the child.
7.The respondent father sought the following orders:
1. That the parents have equal shared parental responsibility for the child, X born (omitted) 2008 (“X”).
2. That X live with her mother.
3. That X spend time with her father during school terms each alternate weekend from after school (or 3.00pm) on Wednesday until before school (or 9.00am) the following Monday.
4. That, unless otherwise agreed between the parents, X spend time with her parents during school holiday periods as follows:
(a) With her mother for the first half of all school holiday periods commencing in years ending in an odd number, and the second half of all school holiday periods commencing in years ending in an even number; and
(b) With her father for the second half of all school holiday periods commencing in years ending in an odd number, and the first half of all school holiday periods commencing in years ending in an even number.
5. That for the purposes of the preceding Order, in the absence of any written agreement between the parties to the contrary, the following Orders apply:
(a) The first half of the school holiday period is deemed to commence at the end of classes on the last day of school;
(b) The second half of the school holiday period is deemed to conclude at the beginning of classes on the first day of school;
(c) One half of the school holiday period is to be calculated by dividing the total number of days X does not attend school by 2, and changeover will occur at 5.00pm on that day. If the number of days are not even, the father is to have the extra day in even years and the mother is to have the extra day in odd years.
6. That the father be permitted to travel internationally with X from 15 January 2018 until 26 January 2018. (This Order was made by consent at the hearing).
7. That notwithstanding the Orders, X live with her mother from 9.00am until 5.00pm each Mother’s Day and with her father from 9.00am until 5.00pm each Father’s Day.
8. That notwithstanding these Orders, if the mother’s birthday or the father’s birthday fall on a day when X would otherwise be living with the other parent, the following Orders apply:
(a) That if the mother’s or father’s birthday falls on a weekday, each of the parents take all reasonable steps to ensure that X spends time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing agreement, from 4.00pm until 7.00pm; and
(b) That if the mother’s or father’s birthday falls on a weekend, each of the parents take all reasonable steps to ensure that X spends time with the parent having the birthday from 9.00am until 5.00pm on the birthday.
9. That on X’s birthday each year the parent with whom X is living make her available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement, from 5.00pm until 7.00pm
10. That, notwithstanding these Orders, X spend time with her parents at Christmas as follows:
(a) With her father from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2017 and each alternate year thereafter;
(b) With her mother from 3.00pm on Christmas Day until 3.00pm on Boxing Day in 2017 and each alternate year thereafter;
(c) With her mother from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2018 and each alternate year thereafter;
(d) With her father from 3.00pm on Christmas Day until 3.00pm on Boxing Day in 2018 and each alternate year thereafter;
11. That neither parent change X’s place of residence from the (omitted) area without first obtaining the written consent of the other parent or an order of the Court.
12. That neither parent change X’s school without the consent of the other parent or leave of the Court.
13. That the parents be permitted to communicate via text message and email in relation to the care arrangements for, and welfare of, X.
14. That each parent notify the other forthwith of any serious illness or injury affecting X, and be at liberty to contact any doctor or hospital treating her to obtain information.
15. That each parent notify the other of the name of any general practitioner or paediatrician or other specialist who treats X whilst X is in that parent’s care.
16. That neither parent say unkind or uncomplimentary things about the other to or in the presence or X, nor allow anybody else to do so.
17. That both parents be and are hereby restrained from discussing these proceedings with or in the presence of X.
18. That to the extent that these parenting orders are inconsistent with the Apprehended Domestic Violence Order made by the Local Court of New South Wales on 22 February 2017, these orders prevail.
Agreed facts
8.The applicant mother is 33 and the respondent father 43. The parties commenced living together sometime between late 2002 and (omitted) 2003 and married on (omitted) 2006. The father has a son A born on (omitted) 2001 from another relationship. The parties’ child X was born on (omitted) 2008.
9.X was born in (omitted). The mother took 12 months maternity leave and was X’s primary carer. The father continued to work as a (occupation omitted) establishing a business (business omitted). He was required to (employment omitted) from Sunday morning to late Friday evenings. The mother assisted in the business and worked in the office. In addition she established her own business (business omitted).
10.The father’s son A lived with his mother and spent time with the parties on weekends and during school holidays. On 15 April 2012 A came to live with the parties and remained there until 26 October 2012. He was then 11 years old. He came to live with the parties on a further occasion in 2013 prior to the parties’ separation.
11.From about 2012, the mother worked at (employer omitted) for 2 - 3 days per week. X attended pre-school on the days the mother worked. The father continued working as a (occupation omitted). He later went to work for (employer omitted) as a (occupation omitted).
12.The parties separated on 3 May 2013 when X was 5 years old. X then lived with her mother and spent time with her father each alternate weekend from Friday afternoon until Tuesday morning. The parties reached agreement without Court intervention. This arrangement continued until December 2015.
13.On 6 March 2015 the mother commenced a relationship with Mr C.
14.From December 2015 to December 2016 the father’s work commitments changed. In 2016 X spent time with her father from Friday afternoon until Sunday evening. A lived with his father when the father was not working and otherwise lived with the mother and X.
15.In January 2016 the mother and Mr C decided to relocate to (omitted).
16.In April 2016 Mr C moved to (omitted) and lived with the mother and X. Mr C and the mother were engaged on (omitted) 2016.
17.In October 2016 Mr C relocated to (omitted). His two children live in (omitted) with their mother. In (omitted) he sees his children on alternate weekends.
18.Most of X’s extended family members live in and around the (omitted) region.
19.The mother filed her Initiating Application on 10 April 2017.
20.On 5 June 2017 the parties consented to interim orders for X to live with her mother in (omitted) and spend time with her father each alternate weekend from Friday after school to Monday before school and for half the school holidays.
21.The matter was heard on 3 and 4 October 2017 with both parties represented by Counsel.
Care of X
22.According to the father, when X was born he took two months off work to assist the mother to care for her. He returned to work full time but was at home as much as possible to spend time with the children. The mother disputed that the father was heavily involved in X’s care. She said she performed the vast majority of tasks associated with her care, including feeding her, bathing her, changing her nappies, and waking to her at night with limited assistance from the father.
23.The father said the mother had post-natal depression. She denied this. She said they both took leave from work to care for X if she was sick.
24.X started day care two days per week when she was about 12 months old. According to the father in 2012 he commenced a job as (occupation omitted) and was able to collect the children from school and look after them in the afternoon. The mother disputes his level of involvement in caring for X.
25.In May 2013 the parents reached agreement that X would live with the mother and spend four nights a fortnight with the father and half the school holidays. The father asserts that he collected X from school on the days he finished work early. In October 2015 when his work arrangements changed, X spent time with her father on alternate weekends from Friday to Monday.
26.The father said in February 2016 he told the mother he wanted to organise a live in nanny to help him with the children as his work commitments had changed. He said the mother told him she did not want X having a nanny and suggested that A stay with her the nights the father was unavailable due to work. The father agreed. A stayed with the mother according to the father on average four nights a week. The father continued to collect both children from school and return them to the mother after dinner on average once a week. The mother disagreed that the father would have dinner with X regularly. She said this did not occur multiple times in the one week and in some cases it would not happen at all over several weeks.
27.In October 2016 the mother told the father he could not spend time with X unless he returned her on Sunday evening. In addition she refused to allow the father to collect X from school on days he finished early even though according to him, he had done so since separation. He instructed his lawyer to write to the mother disputing her attempt to reduce his time to two nights a fortnight. He said the mother did not respond to this letter. The mother denied she refused the father’s requests, she said she had always encouraged the father’s relationship with the child. She gave some examples of occasions in May 2017 when the father had spent extra time after school with X by agreement.
28.The father said X began to spend time with him from Friday to Monday each alternate weekend and for half the school holidays from November 2016 however the mother refused to allow her to spend additional time with her father in the afternoons.
29.The parties disagreed as to whether X would spend time with her father on 6 April 2017. The father said he sent a text message to the mother asking whether it was okay for him to have X overnight on Thursday 6 April 2017 and to take her to the school assembly the following day. The mother and X were leaving for (omitted) for three weeks on 7 April 2017. The parties argued about the proposal, the mother refusing the father’s request. The father told the mother he would collect X from school on 6 April 2017 “with the police.”
30.The father collected X from school that afternoon and drove past the mother’s home. He said the mother then followed him in her car and told him to “pull over I want my daughter.” He told her “she’s not just your daughter. I’ll meet you at the police if you like.” He then drove to the police station and she followed. Police spoke to the parties and according to the father X said “I want to go with dad. Mum doesn’t want me to see Dad. Mum was preparing me for not seeing Dad as much for when we moved.” The father said the police allowed X to spend the night with him and he returned her to her mother the following day. On 13 April 2017 he was served with the mother’s application to relocate.
31.The parties disagreed over whether X would spend time with her father on the extra day of the June 2017 long weekend. The father did not return X in accordance with the orders. The mother denied referring to the father as a “fuckwit” but agreed they argued over this incident.
32.I find that the mother was and remains X’s primary carer. The father has been substantially involved in her life. Formerly the parties were able to reach agreement about the best arrangements for X’s care. Since the mother’s proposal to relocate to (omitted) the parties have been unable to work co-operatively for X’s benefit.
A
33.X has a half-brother A who is now 16. X and A are extremely close, have a strong bond and a loving and supportive relationship notwithstanding the differences in their age. The father described A’s relationship with Ms Renwick as a “mother – child” type of relationship. A was 3 years old when the parties commenced cohabitation and regularly spent time with the parties whilst they were in a relationship. In April 2012 he came to live with the parties full time and stayed until October of that year. The father said that A’s mother Ms D called him and said “A’s going to have to come and live with you. He wants to live with you.” He again lived with the parties in 2013 just prior to separation. He remained living with his father after separation and X lived with her mother. Due to a change in the father’s work commitments, A lived with the mother and X from December 2015 during the periods his father was unavailable due to work.
34.The mother was critical of the father regarding A. She claimed that while in a relationship with him, she observed that he deliberately tried to drive a wedge between A and A’s mother. She alleged that the father disciplined A inappropriately. She alleged that on one occasion the father punched A in the forehead with a closed fist whilst they were in the car and A started to cry. She said she told the father he could not do that and he replied “fuck off Ms Renwick, he needs to toughen up.”
35.The father denied he ever behaved inappropriately towards A and denied disciplining him as alleged. He denied the allegation that he undermined A’s relationship with his mother. I accept the father’s evidence.
36.The father said that in December 2016 the mother told him “I’m not having A stay here anymore.” The father arranged for family friends to care for A during the nights the father had work commitments. The mother said she and A had a disagreement in December 2016. A spoke to her very rudely and she told him he could no longer live with her. The mother alleged that A was associating with people who were involved with drugs. The father denied A or his friends were involved with any drugs. I prefer the father’s evidence. A told the Family Consultant that the mother kicked him out “after the meeting at the pub.” He said he did not know why the mother wanted to move to (omitted). I accept the representation made by A.
37.The father and A have a close relationship and at the time of the trial A continued to live with his father and spend time with X. The children are very close. I regard the sibling relationship as significant.
Employment
38.The mother deposed that since separation in 2013 she has been in the following employment:
(a)From (omitted) 2012 until (omitted) 2014 she worked part-time for (employer omitted).
(b)From (omitted) 2014 until (omitted) 2016 she worked part-time as an (occupation omitted) for (employer omitted).
(c)From (omitted) 2017 to the present she has been employed casually as a (occupation omitted) for (employer omitted). She normally only get shifts totalling 6 to 15 hours per week despite her requests for extra shifts.
39.She said she has had trouble finding stable and regular employment in (omitted). While she worked as an (occupation omitted) for (employer omitted), she wanted to work additional hours, but they only had enough work for her 3 days per week. This eventually moved to fewer days until it was only one day per week she was required. She said in December 2016 she was laid off as they had no work.
40.She has endeavoured to find work both through the Seek and Adzuna employment websites. She was unable to find positions in the (omitted) area that she was qualified for. In late 2016 she applied for a job at a local (omitted) firm, (employer omitted), however they could only offer her work on a casual basis. She was hopeful that it would have provided her with enough money to cover rent and X’s and her own other living expenses but after two interviews she was ultimately unsuccessful in gaining that role.
41.She said she has looked on the Seek employment website to see what employment opportunities are available in (omitted), (omitted) and the (omitted) region. At any one time there are normally multiple positions advertised. She said she thought she would be well suited to these positions, offering either part-time or full-time employment. She has not applied for any positions as she is unsure whether she can relocate to (omitted).
42.She said in comparison to (omitted), (omitted) is very isolated and has a far smaller population. As a result there are far fewer employment opportunities in (omitted). She said “everyone knows everyone’s business.” (omitted) has a higher population and more schools to choose from for X.
43.As well as improved work opportunities, she thought that X would benefit from attending better schools in the (omitted) area. She has researched the schools in the local (omitted) area and believes X will benefit from attending (omitted) Public School. They have after school care available and school activities in (omitted). (omitted) is also building an indoor pool. She said in (omitted), she would have the support from the mother’s sister Ms S who lives there. According to the mother X and Ms S have had a close relationship since X was born.
44.I accept that the mother has had difficulty obtaining employment in (omitted) and take this into account. The mother is hopeful her employment prospect will improve should she relocate to the (omitted) area.
45.The father deposed to working the following hours:
(a)Monday - 9:00am until 4:30pm/5:00pm;
(b)Tuesday to Thursday - 6:30am/7:00am until 4:30pm/5:00pm; and
(c)Friday - 5:00am until 2:30pm.
46.He indicated that his employment conditions were flexible and in the event that X lived with him on school days, he could vary his hours of work to drop her off and collect her from school. He currently does this in accordance with the interim orders. I accept that evidence.
47.The father indicated that he had friends in the (omitted) area and was confident he could obtain work in that area if necessary. However, he does not wish to relocate to (omitted) as he has A to consider and he is in a relationship with Ms L who has children living in Canberra. In addition X opposes the relocation.
Living Arrangements
48.The mother said that the lease on her house in (omitted) expired on 8 December 2016 and the landlord wanted her to sign up for another 12 months. As she and Mr C could not afford to enter into a new second lease. On 4 March 2017 she and X moved into her father’s house which is approximately 7 kilometres out of town. She and X each have a room at her father’s house. Prior to Mr C moving to (omitted), she said they were able to pay for rent using their combined incomes however, following Mr C's move they are not able to afford to pay rent for both properties.
49.The father lives in a 4 bedroom house on an 8 acre property just outside (omitted). He owns that property. The house has 2 bathrooms and all the usual amenities. The property is less than one kilometre from where the mother lives and about a 5 minute drive from X's school. The father said that X has lots of friends in the street and family members in the surrounding area.
Financial support
50.At the time the mother wrote her affidavit, she deposed that the father was paying about $70 per week in child support for X. She had asked the father for further financial support in letters from her lawyer but he had not responded nor offered to assist her financially. The father said he paid $100 per week in child support. In addition he paid for X’s school fees and uniforms and extra curricula activities and gives X cash. The mother disagreed saying she has paid X's (hobbies omitted) and recently purchased some new clothes for X's uniform including school shorts and sports shoes. I am unable to determine this issue save that the father has indicated a commitment to pay for X’s extra curricula activities.
Mr C
51.The mother said her relationship with Mr C was the reason she needed to relocate to (omitted). They met in (omitted) 2015. Mr C was living and working in (omitted). She and Mr C started living together in (omitted) 2016 in (omitted) after having dated for 13 months. Mr C is 36 years old and has two children of his own, B who is 9 years old and C who is 8 years old. The children live with their mother in (omitted) NSW and spend time with their father every second weekend and for half the school holidays.
52.Mr C is a qualified (occupation omitted) and also works as a (occupation omitted). In (omitted) 2016 Mr C moved to (omitted) for work. He said he was working for a (employer omitted) who did not pay him on time or above the minimum rate. He did not want to continue working on that job, but was not able to find any alternative work in the (omitted) area so he decided to stick with it in the hope that something else would come along. He said that given the difficulties he had in finding work he and the mother started considering moving up to the (omitted)/(omitted) area from around the end of 2015. He had been told by some former colleagues that there was good work in that area in his industry and he would be able to find a job very quickly. After the work in (omitted) ended in October 2016 he decided to return to (omitted) and secured work with his former employer. At the start of 2017 he applied for jobs in the (omitted) area and was subsequently hired to work as a sub-contractor with (employer omitted) starting on (omitted) 2017.
53.Mr C spent a short amount of time living with the mother’s sister and her husband at the start of 2017 before he and the mother leased a 4 bedroom, 2 bathroom rental home in (omitted) just outside (omitted). They signed a six month lease and started to move furniture from their rental place in (omitted) to the new place at (omitted). At this time the mother was aware the father did not consent to X relocating to (omitted).
54.Mr C said in (omitted) he was able to find about 2-3 days’ work each week and was earning about $800 gross per week. He now works 40-45 hours per week and is paid $45 an hour and most weeks can gross $2,000. He expects to be able to continue to find work in the (omitted)/(omitted) region.
55.I am not convinced that the reason for relocating to (omitted) related to Mr C’s inability to find work in (omitted). I note that the mother and her partner had decided to relocate to (omitted) well before Mr C commenced work in (omitted). However I accept that he is earning an income substantially greater than he earnt in (omitted).
56.Mr C’s two children live in (omitted) and he is apparently able to spend time with them in (omitted) each alternate weekend as Mr C’s ex-wife’s family live “just around the corner from him so he spends lots of time with his children.”
57.Mr C’s parents appear to live close to the (omitted) area. In (omitted) 2017 his father was diagnosed with oesophageal cancer for which he is receiving treatment in (omitted). His parents stayed with him in the parties’ rental property in (omitted) while his father had treatment. They also stayed at a villa at the hospital.
58.During cross examination Mr C agreed he had spoken to X about her mother moving to (omitted). He asked her opinion and at one stage “everyone was on the same page” however she said she didn’t like the idea and said “I don’t want to go there, I won’t move.” He had not been told she would run away if forced to move. He denied his relationship with X was tense however he agreed that his relationship with X was no longer as good as it once was.
Ms L
59.The father’s new partner Ms L lives in (omitted) and has three children D, E and F aged 17, 14 and 12. The youngest child, F is in year 6 at (omitted) Public School. According to the mother, X regularly talks about spending time with Ms L when she is with her father. The father said he had known Ms L for 7 years and commenced a relationship with her in about (omitted) 2017. They do not live together but spend time together on weekends and during the week. He denied Ms L regularly collected X from school as alleged by the mother. He estimated that by September 2017 she had collected her on about three occasions.
Discussions about relocation
60.I found the mother’s evidence contradictory. She claimed that she and the father “had discussed [her] and Mr C’s planned relocation to (omitted) from January 2016.” She said “in about January 2016 the father told her he would ‘buy a business’ up there and he started looking for work in the (omitted) area.” The father disputed that the mother first raised the move to (omitted) with him in January 2016. He said she first raised it with him in June 2016 and said “Me and Mr C are going to move to (omitted) after Christmas. You can sell your property and move too, but if you haven’t sold it by then we’ll be going anyway.” He said this proposal had not been raised with him before June 2016. At that time he sent the mother a text message saying “I don’t agree to X moving up the coast with you.” I accept the father’s evidence.
61.The mother said she and Mr C decided to consider relocating to the (omitted)/(omitted) area “as Mr C was having trouble finding regular work in the (omitted) area to support them.” However she also said she decided to relocate to (omitted) in January 2016. Mr C said they made this decision in late 2015. Mr C did not work in (omitted) until April 2016 and then returned to (omitted) in October 2016.
62.The father said he considered moving to (omitted) to avoid X being “stuck in the middle of a dispute.” In about (omitted) 2016 he looked at jobs in (omitted) and found a job that he could start in January 2017. He told Mr C about it. He denied he told the mother that he was going to move to (omitted).
63.He said shortly after advising Mr C regarding the job he had found, he received a letter from the mother’s solicitors with Consent Orders drafted on her behalf which allowed her to move with X to (omitted) prior to the commencement of the 2017 school year. He instructed his solicitor on 28 September 2016 to advise the mother he did not consent and proposed that the parties attend upon a child psychologist to further discuss the matter to hear the children’s views. He said in November 2016 he asked X whether she wanted to move with her mother and she said “No.” He told the mother that he would consider moving “if the kids were happy but they aren’t.”
64.He said that on 4 December 2016 the parties met at the (omitted) in (omitted) to discuss the move to (omitted). He said the children told the mother “we don’t want to move to (omitted). We’re settled here and we like our schools.” He said to the children “I am willing to move if you are happy to move.” The children spoke about what they wanted to do when school was finished. X said she wanted to be a (occupation omitted). The mother said “I don’t want to live here. I can’t afford to live here because I don’t have a job. If you don’t want to move I’ll see you in Court and don’t bother calling around to see X anymore because you’re not welcome.” After this the mother sent him a text “I’m not having A stay here anymore.”
65.On 8 December 2016 the father found a letter the mother had written when he arrived home with A’s belongings that said “I intend on pursuing an application to the Court to relocate to (omitted) with X … I confirm A will no longer be living with me and will now live with you full time.” I accept this evidence.
66.The mother claimed that in the course of some discussions with the father at Court in Cowra on 15 December 2016, when the most recent Interim Apprehended Violence Order was made, he again agreed to the mother moving with X to (omitted). Following this, she instructed her solicitors to prepare an Application for Consent Orders and Terms of Settlement to send to the father. She said in anticipation of this, Mr C moved to (omitted) in early January to commence his new job at (omitted) on (omitted) 2017.
67.The father denied he agreed to the move to (omitted) on (omitted) 2016. He said on that date he received documents that had been sent directly to him and not to his solicitor enclosing draft terms of settlement permitting X to relocate to (omitted) with her mother. He immediately contacted the mother’s lawyer to advise he was still represented by his solicitor. It is apparent from the meeting at the (omitted) and the incident that occurred shortly after, that no agreement had been reached.
68.On 12 January 2017, the father’s solicitor responded to the mother’s letter stating there was no agreement reached in relation to X relocating to (omitted) and that the father was not agreeable to the Terms of Settlement provided. The mother said in her affidavit “I was very disappointed and frustrated that Mr Renwick had again changed his mind regarding X and I being able to move, particularly as Mr C had already started his new job.” Other than the vague assertion by the mother regarding “some discussion that took place on 15 December 2016” the bulk of the evidence supports the conclusion that no agreement was reached.
69.On 16 January 2017 the mother’s solicitor sent further correspondence to the father’s solicitor requesting his consent to the relocation and enclosing draft consent orders. On 1 February 2017 a further letter was sent by the mother’s solicitor stating that he had agreed to the mother relocating to (omitted) with X. He said he did contemplate relocating himself to (omitted) however this was due to his concern regarding the impact the dispute between the parties was having on X and A. He decided not to relocate as he determined this was not in the children’s best interests.
70.Further correspondence was exchanged through the parties’ solicitors however the issue was not resolved. On 17 March 2017, the mother said she received a text message from the father stating: “I’m writing to tell you Ms Renwick/Mr C that myself or X will not be moving too (omitted) area. And I will be pursuing custody of X. In the Family law court.” On 29 March 2017 the father’s solicitor advised the mother’s solicitor that he did not consent to X relocating to (omitted).
71.The mother said when she first filed her Initiating Application on 10 April 2017, she believed that she and the father would reach an agreement about moving to (omitted) within a short period of time.
72.The parties’ relationship has deteriorated following these events. I accept that to be the case. The mother in my view was hopeful that she could persuade the father to move to (omitted) to support X’s relocation.
73.She said while she has her own personal grievances with the father, she would support and encourage him to move to (omitted) as she values and respects the relationship that he has with X and appreciates that it would be in her interests for him to also be in the (omitted) area and for X not to have to travel for significant periods to spend regular time with him. This appears contradictory given her assertion that she is fearful of the father.
X's involvement
74.The mother said she and Mr C were open with X about their desire to relocate. She reassured X that she will still see her dad regularly and is aware that X loves her father very much. She said initially X was understandably worried and upset about moving away from her friends and school in (omitted). After some time her attitude to moving became more favourable. According to Mr C, once the mother filed her Initiating Application in Court X’s attitude towards moving to (omitted) changed.
75.The mother claimed the father has put significant pressure on X while she is in his care to tell the mother that she does not want to go. X said “I don’t have to move if I don’t want to, Dad said it’s up to the Court Judge to decide.” In the mother’s view this comment would not come from X without prompting.
76.She said the father had bought X expensive gifts to try and influence her views about moving to (omitted). On or around 29 July 2017, X sent her mother a photo that she had taken of a new (pet omitted) that the father had purchased for her. She sent a text message saying “This is (omitted).” The mother replied “Oh, she is lovely.” The week that X received the (pet omitted) from her father he had also purchased cruise tickets for them over the summer holidays. I note the mother consented to an order that X be permitted to travel on a cruise with her father.
77.She said X does not appear anxious about the move when she has not been spending time with her father. This evidence is in stark contrast to the evidence of several other family members who have indicated X’s reluctance to move and her statement that she will run away if required to relocate. It is apparent that the child is upset, distressed and anxious regarding the move.
78.The father denied he has been attempting to influence X to stay in (omitted). He alleged that the mother and her partner have attempted to influence X. The child complained to her father that the mother “drilled her” about why she did not want to relocate to (omitted) in the car on the way to (omitted). X phoned her father and asked him to come and collect her.
79.In my view both parents have exerted pressure on X and involved her in a decision that should have been left to her parents. This in my view has impacted on the formation of X’s opposition to the move.
Proposal following relocation
80.The mother said in the event that she is permitted to move X to (omitted) they will regularly travel back to (omitted) to visit family and friends, in particular her father. In the event that the father does not relocate, she proposed that X spend time with him for half the school holidays, and initially suggested X spend time “every second weekend, with the location for where the time occurs alternating between (omitted) and (omitted).” She would be willing to travel to (omitted) with X once per month to facilitate time occurring and the father could travel to (omitted) once per month to spend time with X up there. This would mean that X would continue to spend the same time with her father but she would only have to travel to (omitted) once per month.
81.She said she appreciated that this would not be an ideal arrangement for X but it was necessary for the family’s stability and prosperity and ultimately was in her best interests. She proposed that changeovers for school holidays occur at (omitted) during school holidays as this was approximately half way between (omitted) and (omitted). During submissions the mother through her Counsel changed her position and suggested that X spend time with her father once a month in (omitted) and such additional time if the father is able to travel to (omitted) or meet the mother half way no more than once per month. I formed the view that the mother had not adequately considered what “spend time” arrangements would ensure X maintained her close relationship with her father.
82.The mother proposed that X attend (omitted) Primary School for X in 2017. She said X is a friendly little girl who mixes with anyone. She is not shy and is always willing to have a go at anything. She is very keen to start activities such as cheerleading and has said to the mother, “Mummy, when we move to (omitted) I want to start doing (hobbies omitted).” She said X is able to adapt quickly and cope with the change.
Practical difficulties
83.There are a number of practical difficulties for X spending regular time with her father should he remain in (omitted). It is a 5 and a half hour drive between (omitted) and (omitted) and a distance of approximately 440 kilometres. Alternate weekend time is impracticable given that it would take the better part of a day to drive to (omitted) and a day to return with most of the time spent in a motor vehicle. Any monthly or mid-term travel time would be severely truncated by the travelling time between the two homes.
317.There are a number of disadvantages if X remains in (omitted). (omitted) is a place where the mother, X’s primary carer, does not want to be. The mother and X currently live with the maternal grandfather and do not have separate accommodation. The mother indicated that due to the paucity of her income and the lack of availability of regular work she is unable to afford independent accommodation. She currently travels 5½ hours to spend time with her partner who has relocated to (omitted). He has found work in the area capable of financially supporting both the mother and child. The mother believes there are greater opportunities for both herself and X in (omitted). She is hopeful she will obtain further work to assist financially and X will be exposed to a larger community in a school that offer greater challenges for her.
318.There are advantages should the mother be permitted to relocate to (omitted). She will join her fiancé in the home the parties have currently leased relieving some of the financial burden on them. She is hopeful of obtaining work and contributing. She wishes to provide X with greater opportunities than those currently available to her in (omitted). She will be relieved of travelling to be with her partner and her happiness and contentment will be enhanced. There will be an opportunity for the mother to pursue her relationship with Mr C. X will have an opportunity to re-establish this relationship also.
319.There are disadvantages with respect to the relocation to (omitted). The father has indicated he will remain in (omitted). X is likely to be significantly distressed not spending regular time with her father though I note that the father said he could readily move to (omitted) and could find work “tomorrow” in the (omitted) area if necessary. X will not spend regular time with A whom she adores and enjoys his company. She will not regularly spend time with members of her extended family. Arduous travel time will be imposed as a result of the move for either X or her father (and perhaps brother) to travel to ensure their relationship is maintained. X is likely to be significantly distressed about the move given her strongly held opposition to relocating. The relocation may impact negatively on X’s relationship with her mother and Mr C.
Conclusion
320.This matter has been a most difficult matter to determine what order is in X’s best interests. It is common ground that X currently holds very strong views against relocating to (omitted). I accept that the mother is finding it extremely difficult financially and practically living in (omitted) in circumstances where her income does not allow her to support herself and X independently and her fiancé lives in (omitted). He has secured employment and accommodation and is in a position to financially and practically support both X and her mother should they be permitted to relocate.
321.Such is the nature of X’s views that in my opinion she will be extremely distressed if she is to immediately relocate to (omitted). In my view the risk of X running away if her wishes are not adhered at the present time is significant. I am required to balance all the competing interests in reaching my decision. The father has indicated he can obtain work in (omitted) readily and had indicated a preparedness to move. He said this was subject to X being happy to go. He resiled from his willingness to relocate primarily on the basis of X (and A’s) opposition to the move. He can readily obtain work in the (omitted) area without difficulty.
322.X turns 10 in (omitted) 2018. She will not always be 10 years old. She is a mature, intelligent child who according to her father has aspirations of becoming a (occupation omitted). The mother agrees that X is a bright child and believes that the move will afford her greater opportunities. The mother as X’s primary carer has indicated that she will adjust to the move though accepts she will be initially distressed.
323.Notwithstanding her strongly held views, in my view X lacks the broader perspective that both her parents have for her welfare and her future and what may be in her best interests.
324.The parties have fought bitterly over the relocation issue. No doubt both are wounded by the battle. Neither party trusts the other though relationships have been workable in the past. Given the current circumstances in my view, X and her parents require time to adjust to the relocation and put the bitterness of the dispute behind them. The mother demonstrated little or no regard for the father’s attitude towards the proposed move. She has prioritised her wish to move to be with her new partner. Understandably though this might be, X and her relationship with her father and X’s ability to adjust to the proposed move are equally important.
325.The father is aware that he plays an important role in X’s life. The mother recognises this also and is confident that he will play a pivotal role in assisting X to accept that the relocation is in her best interests. Whether he ultimately relocates to (omitted) is his decision. The evidence indicates he was willing to do so and has the capacity to do so at any time.
326.I am confident that both parents are capable of prioritising X’s needs above their own. I am optimistic that the parents can jointly act in X’s best interests (as they had done in the past). Given the father’s preparedness to relocate and the long term implications of the mother remaining in (omitted) and the current opposition from X to the move, in my view the best outcome for X is to delay the relocation for a further twelve months. During this time the parties will have an opportunity to support X to come to terms with the relocation.
327.I intend to make an order that X’s relocation to (omitted) be delayed until the commencement of school in January 2019. In the meantime the parents and X are to engage in counselling to assist X to adjust to the idea that she will relocate to (omitted) at the end of the year. She will then be eleven years old and entering Year 5. A will have turned 17. The mother will be able to live with her fiancé in (omitted) long term. The delay is primarily to assist and support X to accept the change in her circumstances. The parties can always enter into a parenting order and agree to accelerate the relocation should they jointly determine that is in X’s best interests. The father may relocate to (omitted). There will be a substantial benefit to X if he chooses to do so. No doubt her relationship with her father is a significant one. In my view ultimately relocating with her primary carer is in X’s best interests long term. In the short term in my view X requires assistance to adjust in the proposed change in her circumstances.
328.Until January 2019, X will spend time with her father from after school on Friday until before school on Tuesday each alternate week and on each Thursday from after school until 7.00 pm with the father to provide X with a nutritious dinner and for half the school holidays. Changeover will occur at school and on Thursday evenings the father will deliver X to the mother’s home. It will be important for the mother to foster and encourage X’s relationship with her father.
329.From January 2019 when X relocates to (omitted), the proposed orders above will apply should the father live in the (omitted) area in proximity to the mother’s home. In the event that the father continues to live in (omitted), X will spend time with her father on the first Friday of each month until Sunday with the mother to deliver X to the father’s home at the commencement of time and collect X from the father’s home at the conclusion of time and for half the school holidays with changeover at (omitted). In my view these orders are in X’s best interests.
I certify that the preceding three hundred and twenty nine (329) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 24 January 2018
Exhibit “A”
Table of Exhibits
| Exhibit no | Description | Reason for tender |
| R1 | Letter from (omitted) service to Mother dated 30 May 2017 | X was suspended from travelling on the school bus for 1 week (30 May to 5 June 2017) due to a breach of code of conduct for school students on buses – the misconduct is noted as assaulting another student on the bus. Mother asserts she never received the letter just a phone call. Mother took X’s phone off her for a week as punishment. |
| A1 | X’s 2014 kindergarten school report | Document was tendered to clarify what year X started school. Mother was asked questions during her cross examination about picking up X in 2013 but it was actually 2014 that the mother was talking about. |
| A2 | Police record – incident on 1 May 2013 | Parties had a fight at time of separation. Police record indicates “The accused in this matter is Mr Renwick. The accused is currently on bail to be of good behaviour in relation to a matter before Goulburn Local Court to be heard on 15 May 2013. The accused and the victim, Ms Renwick, have been in a domestic relationship since 2003. They have been married since (omitted) 2006. The accused and the victim have one daughter, X, aged five years, from their relationship. The accused’s son, A, aged 11, from another relationship, also resides with the accused and victim. About 7.25 on Wednesday, 1 May 2013 the victim was in the kitchen cleaning up after dinner when the accused came in and asked where the plate of silverside had gone. The victim told the accused that she had given the silverside to her father. The accused and the victim then had an argument over their daughter, X, not seeing her grandfather. Father agrees about the food part. Police obtained photographs of the red marks on the victim’s throat area. Father denies any physical violence. DVO put in place for 12 months following this incident. |
| A3 | Police record pgs 5-17 – incident on 29 May 2014 | This comment concerned the victim and she took it to be a threat from the person of interest. The victim believed that –may be planning of having someone harm her. So at 3.20 on the same date she received a text message from you and that said, “About time someone came your way. I will show you retaliate.” The victim immediately told you to leave and that you’re not welcome there. He refused to leave and began yelling abuse and threats. During that incident your daughter, X, was present and witnessed the incident. Father agrees X was present but does not recall if the rest of the statement is correct. On 20 May 2014 Ms Renwick called me and said to me words to the effect, “You’re not having X this weekend. I’m going away.” She then hung up the phone. I tried to call Ms Renwick back, but she didn’t answer. I then went to Ms Renwick’s house and said words to the effect, “Why won’t you let me have X?” Ms Renwick said to me words to the effect, “Go away. Leave the premises. You’re not welcome here.” So that’s pretty similar there. Ms Renwick’s boyfriend at the time [Mr A] yelled at me through the doors words to the effect, “Fuck off.” I then punched the screen door and walked off. I acknowledge that I should not have done this. However, I was extremely frustrated at the time. I did not send Ms Renwick any text messages that night. Father agrees with that statement. On 28 May the victim attended (omitted) Police Station to report a matter of threats and intimidation by Mr Renwick. Both persons were in a relationship for six years and had been separated for the last 12 months. They have one child together, who resides with the victim. The victim disclosed threats of assault and from this an urgent police application for a DV order was made and granted. The conditions of the AVO are –and it goes through the conditions, but they are that you must not assault, molest, harass, threaten or otherwise interfere with the protected person. They’re the standard AVO things, including not contact: This was served on the accused, Mr Renwick, at his residence in (omitted) at 10.44 that night. At 10.44 the victim, Ms Renwick, received a text message on her phone from the accused. This is the accused’s nickname. The message read, “This won’t stop me.” The victim felt threatened and intimidated by the message and that she felt the accused could continually harass her and hang around her place. At 10.59, some five minutes after the AVO was served, the same time since the last message the victim received, another text on her mobile phone was received, this time from the number known to her as“….mobile” This message was a picture message with large red letters commonly known as “laugh my arse off”. This again made the victim feel scared and worried for the fear of herself and her property. The police explained the AVO and discussed the points of each condition. At this point the accused stated that he did send the text message, but it had no intention to cause fear. It was a response to a conversation earlier where he had stated to the victim that she needed help for mental health reasons. He stated he was offering advice and his comments to her later was, “This won’t stop me offering advice.” He agreed that it could have read better, but he had not caused fear. The accused said that leading up to that afternoon before the AVO the victim was driving up and down the road in front of him and his ex-partner from (omitted) and was sticking her finger up and gesturing to him. Father agrees he remembers having that conversation with the Police and showing them his text messages. No further action taken by the Police. |
| A4 | Police record – pgs 3-4 incident dated 8 Dec 2016 | Ms Renwick would like to move to (omitted) to be closer to her family and to start a new life. When Ms Renwick first mentioned this to the defendant there seemed to be no issues and the defendant even told her he would also move up, so that he could stay close to their daughter. However, since she has been in the new relationship the defendant blames Mr C for being the reason she wants to move away from (omitted). In September, after an argument between the defendant and Ms Renwick about Ms Renwick moving away, Mr C received a message from the defendant, which read, “You’re about to see another side of me, cock.” Mr C took this as a threat and blocked the defendant’s number. Over the last few months, the defendant has been turning up and – at the – Ms Renwick’s home at any time of the day and night and when she asks why he’s there, he always says he’s there to see the child. On Sunday, 4 December, Ms Renwick and the child met with the defendant and the defendant’s oldest child, A, at the (omitted) in (omitted) to discuss, civilly, Ms Renwick and the child moving to (omitted). The discussion was going well at first before the defendant became angry, raising ..... voice and started verbally abusing Ms Renwick about her and her new relationship and her wanting to move to (omitted). The argument was witnessed by a number of other patrons at the hotel. The defendant kept abusing Ms Renwick and was yelling louder. You then stood in front of her and said, in front of the child: I will get you and that cock. Child got out of the – Ms Renwick’s car and ran over to the defendant’s vehicle and grabbed the defendant around the face and told you to stop fighting. She was getting very upset and crying. Father denies X was telling them to stop fighting he alleges X said to him, “Don’t worry about it, dad. You’ll be all right.” |
| C1 | Family report completed by Ms M dated 19 Sep 2017 |
| Exhibit No. | Description | Relevant information |
| R1 | Letter from (omitted) dated 30 May 17 | Letter to Ms K (mo) regarding X’s behaviour on the bus. X assaulted another student on the bus (on 25/5/17) which is regarded as a breach of code of conduct for school students on buses. X was suspended from travel from 30 May to 5 June 2017. |
| A1 | X’s 14 school reports | X’s 2014 kindergarten school reports for semester 1 and 2. Report show a total of 22 days absent for the year. Indicates X consistently keenly attempts all activities. It also states X is a happy and diligent student, however at times needs to focus on her work and not be distracted or concerned about what her peers are doing around her. |
| A2 | Police Report 1 May 13 incident | Incident of DV at separation. Police took photographs of the red marks on the victims (mo’s) neck. Parties had a disagreement about food (silverside) that the mother had given it to her father and then disagreed about X spending time with MGF. It is alleged X witnessed the incident and the parties were struggling physically whilst holding/trying to get hold of X. |
| A3 | Police Record 28 and 29 May 14 | Another DV incident on 29 May 14, threats and intimidation to mo from fa. Mo successful in obtaining urgent DVO and even after DVO served on fa he sent a further msg. |
| A4 | Police Record 8 Dec 16 | Another DV incident on 4 Dec 16 at the pub. Mo, fa, X and A (fa’s older chi) met to have a discussion about the relocation. Mo alleges fa became angry, raising his voice and verbally abusing the mo. Mo removed herself and X from the situation and fa is alleged to have said “I will get you and that cock”. Fa then followed mo in his car to her house, X then got out of the car and grabbed the fa by the face and told him to stop fighting, she was upset and crying. |
| C1 | Family Report completed by Ms M on 19 Sept 17. |
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