Robertson & Chin

FAMILY COURT OF AUSTRALIA

ROBERTSON & CHIN

[2008] FamCA 686

FAMILY LAW – CHILDREN – equal shared or sole parental responsibility – best interests of the child
FAMILY LAW – RELOCATION – right of freedom of movement – relocation proposal of the mother

Family Law Act 1975 – ss 60CA, 60CC(2)(a), 61DA(1), 61DA(4), 65DAA

B and B, Family Law Reform Act 1995 (1997) FLC 92-755
AMS v AIF (1999) FLC 92-852
U v U (2002) FLC 93-112
Taylor and Barker (2007) FLC 93-345
Godfrey v Sanders (2007) 208 FLR 287
Mazorski and Albright [2007] FamCA 520

APPLICANT:

Ms Robertson

RESPONDENT:

Mr Chin

FILE NUMBER:

SYF

2987

2004

DATE DELIVERED:

14 August 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATES:	15 October 2007; 21-24 July 2008
Written Submissions:	29 July 2008; 11 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

G Page SC and R Schonell

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

P Maiden SC and S Thomas

SOLICITOR FOR THE RESPONDENT:

Ross A Clarke & Associates

Orders

That all current parenting orders are discharged.
That the parties have equal shared parental responsibility for the child of their relationship … (“the child”) born … October 2002 AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That the child shall live with the mother and may live with her in South East Queensland and the mother shall have the sole parental responsibility for decisions concerning the day to day care welfare and development of the child during the periods that the child is in her care.
That the child live and communicate with the father as follows and the father shall have the sole parental responsibility for decisions concerning the day to day care welfare and development of the child during the periods that the child is in his care.
During the Queensland school term
(a)On the first weekend of each four week period from 6.00pm on Friday until 6.30pm Sunday effected by the mother placing the child on a flight from Coolangatta airport such that the child arrives at Sydney domestic airport no later than 6.00pm on Friday and the father shall place the child on a flight from Sydney domestic airport such that the child arrives at Coolangatta airport no later than 6.30pm on Sunday PROVIDED THAT the mother shall have given the father advance notice of the payment by her of a return air ticket from Coolangatta to Sydney together with the times of plane departure/arrivals consistent with that weekend.
(b)The first occasion of the weekend period referred to in Order 4(a) shall be on Friday 5 September 2008.
(c)On the third weekend of each four week period from 6.00pm Friday until 6.30pm Sunday in the same terms as in Order 4(a).
(d)The first occasion of the weekend period referred to in Order 4(c) shall be on Friday 22 August 2008.
(e)In the event that the father intends to travel to Queensland and upon giving 14 days written notice to the mother for periods in addition to the periods outlined in Orders 4(a) and 4(c) herein not exceeding three (3) days at one time in which case two of such days be in a weekend PROVIDED THAT such periods occur no more than once in each school term.
(f)For one-half of each of the Queensland gazetted school holiday periods (or in the case that the child shall attend a private school, the holiday periods determined by that school) in each year being the first half of such holiday periods in odd numbered years and the second half of such holiday periods in even numbered years subject to the following terms and conditions:
(i)The school holiday periods shall commence at 9.00am on the first day of the school holiday period and shall conclude at 6.00pm on the second last day immediately preceding the commencement of school at the beginning of the school term.
(ii)The weekend periods referred to in Orders 4(a) to 4(e) inclusive shall be suspended during each such school holiday period.
(iii)The father shall collect the child from the residence of the mother at the commencement of the holiday period that the child is to live with the father and shall return the child to the mother’s residence at the conclusion of such period and in the event that the child is to travel by air between Queensland and New South Wales for the purposes of such holiday periods the costs of the child’s travel shall be borne equally by the parties PROVIDED THAT the arrangements for such travel be made by the father and he shall give the mother 14 days prior written notice thereof.
(g)On the birthday of the father and on Father’s Day in each year in Queensland in the event that the child is living with the mother at those times and if such occasions fall on a weekend or other Queensland public holiday.
(h)On the birthday of the child in Queensland in the event that the child is not then living with the father in that the child live with the father for no more than three (3) hours in the event that the birthday falls during school term and if during a school holiday period for not more than six (6) hours.
(i)For such alternative or other periods and/or at such alternative places that the parties may agree upon from time to time.
That the father shall have electronic communication with the child by telephone or by webcam using Skype software at all reasonable times but in any case no more than twice a week between the hours of 6.00pm and 7.00pm and the mother shall at all times keep the father informed of the landline telephone number at which such electronic communication is to take place and shall provide and keep in order a webcam and Skype software to enable such communication.
That during any period that the child shall be living with the father the mother shall be at liberty to communicate with the child by telephone or by webcam using Skype software no more than twice in each week between the hours of 6.00pm and 7.00pm and the father shall do all such things necessary to ensure that such electronic communication takes place.
That each of the parties will ensure that telephonic and electronic communication between the child and the other parent is not monitored or interfered with by them and that provision is made to enable the child to have such communications in private and they shall encourage and permit the child to communicate with the other party at all other reasonable times in accordance with the child’s wishes.
That in the event that the child shall be living with the father on Mother’s Day or the birthday of the mother in any year the child shall spend time with the mother on each of those days and in the event that the child is not living with the mother on the child’s birthday the mother shall spend time with the child for not more than three (3) hours in the event that the birthday falls during school term and if during a school holiday period then for not more than six (6) hours.
That each of the parties shall be at liberty to take the child out of Australia during any period that the child shall be living with that party PROVIDED THAT party give to the other one (1) month’s written notice of the intention to take the child and provide to the other full particulars of the destination intended for the child and the dates of departure from Australia and return together with an address and telephone number at which the child might be contacted during such overseas period and PROVIDED THAT in the event such overseas period be during a school term or part thereof the consent in writing of the other be provided to such departure.
That upon relocating to South East Queensland the mother will consult with the father about enrolling the child at a State school or private school within proximity to her residence.
That the mother inform the father of the names and addresses of the medical practitioners consulted by her in relation to the child and shall authorise and do all such things necessary to ensure full access by the father to such medical practitioners.
That the mother shall authorise and request the Principal of all schools attended by the child to furnish to the father at his request copies of all school reports, correspondence and notices in relation to the child’s academic progress and school sport and other activities.
That in the event of the child suffering a serious injury or illness whilst in the care of either of the parties then such party shall inform the other party as soon as possible of the details thereof and the name, address and telephone number of the relevant medical practitioner or hospital as the case may be.
That each of the parties will continue to use a parenting book for the purposes of providing communication between them as to matters relevant to the welfare of the child in accordance with the recommendations of Ms B, clinical psychologist and such book will be exchanged by them on each occasion that the child travels to or from each of the parties and the contents of the parenting book shall at no time be used by either party as evidence in any proceedings between them in relation to the parenting of the child.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF2987 of 2004

MS ROBERTSON

Applicant

And

MR CHIN

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings the applicant Ms Robertson (who for convenience I shall refer to as “the mother”) sought parenting orders in relation to the child of the parties pursuant to her Application for Final Orders filed 13 June 2007.
The mother’s application was amended unopposed at the commencement of the hearing in accordance with the “Minute of Order” sought by her which became Exhibit 3. In essence, the orders sought by the mother were inter alia that previous current parenting orders be discharged; that the parties have equal shared parental responsibility for the child; that the child live with the mother in South East Queensland; and that the child live with the father for the first weekend of each month from 6.00pm Friday until 6.30pm on Sunday and on the third weekend of each month from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday in the event that Monday is a gazetted public holiday in Queensland). In addition, orders were sought by her that the father have further periods of time with the child for half of each of the Queensland gazetted school holiday periods.
The mother also sought alternative parenting orders in the event that she was not permitted relocate with the child to Queensland. The major differences compared to the primary orders sought by her are that the child live with the father in New South Wales and spend periods of time with the mother in South East Queensland in similar terms to the orders otherwise sought by the mother.
The respondent, Mr Chin (who for convenience I shall refer to as “the father”) opposed the primary orders sought by the mother. The orders sought by him were in accordance with his Response filed 9 August 2007.
During the hearing the father’s Response was amended. The parenting orders sought by him, whilst initially in accordance with Exhibit 4, were further amended unopposed in the “Minute of Order” which became Exhibit 4a.
The substantive orders sought by the father are that he have sole parental responsibility for the child; and that the child live with him in New South Wales. The father also sought orders that the mother may spend periods of time with the child each alternate weekend from 6.00pm Friday until 6.00pm Sunday and for half of the school holiday periods.
At the heart of the parenting proceedings between the parties is the issue of whether or not it is in the child’s best interests for her to be able to relocate to live with the mother in South East Queensland.
The hearing proceeded in accordance with the Less Adversarial Trial (“LAT”) practice and procedure.

Historical Background

The following brief relevant historical matters are not controversial.
The parties cohabited for a period of approximately two years.
The mother contended that cohabitation commenced in June 2002 whilst the father’s contention is that commencement of cohabitation took place in January 2002. Nothing of relevance turns on this disputed matter and sensibly it was not explored during the course of cross examination.
The parties separated on 29 March 2004 and have lived separate and apart from each other continuously since that time.
The mother is 37 years of age and is a homemaker. The mother is pregnant as a result of her relationship with her partner.
The father is also 37 years of age. He is self employed as an IT consultant.
The child of the parties is a daughter who is five years of age having been born in October 2002 (“the child”).
At the time of separation, the child was approximately 17 months old. The child has lived in the primary care of the mother since that time.
In May 2006 the mother commenced living with Mr Robertson (“the mother’s partner”).
In April 2007 the father commenced living with Ms C (“the father’s partner”).
In September 2007 the mother married her partner.

Orders

On 6 May 2004 interim parenting orders were made by consent. Those orders provided for the child to reside with the mother and the father to have “contact” on a fortnightly cycle.
On 1 February 2006 final parenting orders were made by consent (“the consent orders”). The consent orders provided inter alia for the parties to have joint parental responsibility; that the child live with mother; and that the child have contact with the father each alternate weekend and each alternate Monday overnight and for portions of school holiday periods.
On 15 October 2007 the first day of the hearing took place before me. The Less Adversarial Trial (“LAT”) procedures were applied. Agreement was not reached in relation to any issue. Directions were made.
On 21 November 2007 orders were made by consent requiring the parties to consult Ms B clinical psychologist for the purpose of “seeking advice and strategies to improve their capacities to communicate with each other in relation to issues concerning the welfare and development of the child”.
On 26 November 2007 orders were made requiring Ms G, family consultant to prepare a family report.
On 4 December 2007 the proceedings having been listed before me for mention on short notice, the mention date was adjourned to the following day as counsel for the father was without instructions in relation to the possible appointment of a substituted family consultant.
On 5 December 2007 a notation was made that the solicitors for the parties informed the Court that their respective instructions were to proceed with proposed interviews with the previously appointed family consultant.
On 20 December 2007 I delivered an ex tempore judgment and made the following Orders:
“Stay of proceedings
1.That the application of the father for a stay of proceedings filed 17 December 2007 is dismissed.
Parenting orders
2.That the mother is restrained from changing the place of residence of the child from her current Sydney premises or alternatively other Sydney premises in one or other of the suburbs referred to by her in her affidavit sworn 19 December 2007 upon giving the father seven (7) days written notice.
3.That the parties enrol the child to commence school at the kindergarten level in a public school as agreed upon between the parties in writing or failing agreement in the suburb in which the mother will reside in Sydney.
4.That the mother may reside with the child in Queensland during the current school holiday period subject to the child spending periods of time with the father in accordance with the Orders made 1 February 2006 and she also may reside with the child in Queensland following completion of school on the Friday to the following Sunday evening PROVIDED THAT such period does not interfere with the periods of time that the father is entitled to spend with the child in accordance with the Orders made 1 February 2006.” (“the interim orders”)
On 29 April 2008 a directions hearing was conducted following the release of the Family Report dated 10 March 2008. It was noted that the following issues arose for determination upon the resumption of the hearing:
“Issues for determination
4.That the issues for determination on the subsequent hearing of these proceedings are as follows:
(a)The nature of the relationship between the child and each of the parties, their respective partners and extended family members.
(b)The care of the child by each of the parties since the Orders made 1 February 2006.
(c)The capacity of each of the parties and their respective partners to provide for the physical, emotional and intellectual needs of the child.
(d)The likely effect upon the child in the event of her:-
i)         Living with the mother and her partner in Queensland.
ii)       Living with the mother in Sydney.
iii)      Living with the father in Sydney.
(e)The nature and extent of the parental conflict since the Orders made 1 February 2006.
(f)The quality of communication between the parties and each of their respective partners.
(g)The proposals of each of the parties in relation to:-
i)The future care and upbringing of the child and the role of the other party.
ii)The improvement of communication between them in relation to matters affecting the child.”
On that date further directions were made, and the resumption of the hearing was set down for three days commencing 21 July 2008.
On 24 June 2008 the father’s application for the appointment of Dr W, psychiatrist to provide a report in relation to alleged psychiatric issues affecting the mother was adjourned for hearing on 3 July 2008 upon the application of senior counsel for the father.
On 3 July 2008 the abovementioned application of the father was withdrawn pursuant to the father’s solicitor’s letter dated 30 June 2008. Directions were made.
On 7 July 2008 further directions were made by a Registrar.

Relevant legal principles pursuant to the Family Law Act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.” [emphasis added]
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to a child and the principles that underlie those Objects. In substance, they include the benefit to a child of its parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. [emphasis added]

The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of their child; and
(e)a child’s right to enjoy its culture including with others who share that culture.
It is important to note that section 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” [emphasis added]. To that extent, the recent legislative amendments to the Act in relation to children continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[2]
[2] B and B, ibid
In carrying out my task it is important to note that no presumption as to orders that should be made arises, nor does either party carry any particular onus for the purpose of the conduct of the proceedings.[3]
[3] B and B, ibid
The legislative amendments which came into force on 1 July 2006 provide continued emphasis upon the paramountcy principle of the best interests of the child, both for the purpose of making a parenting order as well as the exception to the principles underlying the Objects of Part VII to which I have also referred and having regard to assistance gained from the Explanatory Memorandum provided by the Attorney-General to the Parliament upon the reading of the Family Law Amendment Bill (Shared Parental Responsibility Bill) 2005. [4] The first Reading Speech in the House of Representatives provides additional emphasis of the paramountcy of the best interests of the child.[5] That Bill was ultimately passed and enacted with the consequential major amendments to the Act included in the new Part VII which exclusively deals with child related issues.
[4] Paras 31, 32, 43, 44, 180 of the Explanatory Memorandum to the Family Law Amendment Bill
[5] First Reading Speech, p. 8

Relevant matters pursuant to section 60CC

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[6] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[6] Section 60CC(1)
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.”[7]
[7] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”. For example, findings in relation to the nature of the relationship that a child has with each parent and the parental capacity of each of the parties to provide for the needs of the child are surely in a given case necessary factual findings for the purpose of reaching a conclusion regarding the benefit to the child of having a meaningful relationship with both parents.
Fortunately for the child, the second primary consideration is not relevant in these proceedings.
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the child and the parenting orders that will be made.

Matters that arise pursuant to section 60CC(3)

I make the following findings in relation to relevant provisions pursuant to s. 60CC(3).

The views of the child and relevant factors

The evidence of the parties and their respective partners with regard to the loving relationship that each has with the child makes it plain that the child is thereby indirectly expressing a view to spend time with each of them. In addition, each party has given evidence from which it can be inferred that the child has expressed directly or indirectly a view to spend periods of time with her or him as the case may be. The cross-examination of the parties and the mother’s partner did not challenge that approach. The father’s partner was not required for cross examination.
In Exhibit 3 the family consultant concluded that the child had expressed the following views.
Those views included “that she would like her parents to like each other”; that the child was “definite that she would be going to live in Queensland” and that she would like to do so “so I can see the baby.”
In addition, the family consultant noted that the child stated “that the ‘best’ thing that could happen with her parenting arrangements would be to live with her mother and the “worst” thing would be for her to live with her father.” In that regard, the child noted in relation to “the potential impact of this on both her father and [the father’s partner]” was “I don’t want to break their hearts” and “leaving them would break their hearts”. With regard to the child’s view of the potential effect upon the father’s emotions should she live with the mother in Queensland, the family consultant during her oral evidence expressed some bemusement as to the source of the expression that the child used and the family consultant stated in that regard that she did not know “how or why she said that”. The oral evidence of the father in relation to the feelings he expressed to the child about her possibly living with the mother in Queensland was such that I infer it is likely that caused or influenced the child to make those quoted statements to the family consultant.
So far as the significance of the child’s expressed clear view to live with the mother in Queensland, the family consultant expressed the following opinion:
“It is assessed that [the child’s] verbally expressed views need to be considered within the context of her apparently greater anxiety about the responses of her mother in comparison with her father. She is also not of any age and level of maturity in which her expressed wishes should be given significant weight in the determination of the dispute.”
It was clear to me that the family consultant only put open questions to the child and as the family consultant stated in her oral evidence she did not question the child as to why certain things were said by her.
I accept the evidence of the family consultant, to which I have referred, with the exception of her opinion as to the weight or significance which should be given to the child’s views, being the preference to live with the with the mother in Queensland, as the family consultant’s evidence in that regard will need to be assessed by me taking into account other evidence and findings of relevance that will be made.
Accordingly, I find that the child has expressed the views referred to in paragraphs 49 and 50.

Nature of the relationship of the child with each of the parties and others

There is no issue that the child has a loving relationship and close attachment with each of the parties or, that the child has a loving relationship with each of their partners.
Similarly, it is not a matter of controversy that the child has a fond relationship with members of the extended families of each of the parties.

Willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other parent, including the failure to do so

Any such willingness and ability has been handicapped for a considerable period by the historical conflict and perfunctory, at best, level of communication between the parties in relation to matters affecting the child overlaid by the current and past parenting proceedings between them.
I accept the mother’s evidence, to which there was little if any challenge that she has complied with the consent orders for the purpose of periods of time that the child should spend with the father. That has continued regardless of whether mother or child has lived on the Gold Coast or in Sydney.
In paragraphs 65 and 66 of the mother’s primary affidavit, she gave evidence of different ways in which she has demonstrated a willingness to facilitate the ongoing relationship between the father and the child. I accept her evidence which was detailed and plausible and not the subject of any substantial challenge. I make findings accordingly.
The affidavit evidence of the father is that in the event of the child living with him in Sydney he will ensure that the child is able to communicate with the mother in any form that is necessary to see her by electronic communication.
The father consented to the child travelling with the mother for a week’s holiday in Hawaii in May 2008. A dispute arose between the parties regarding telephone communication between the father and the child while she was in Hawaii.
The mother is pregnant and expecting to give birth to the child in September 2008. A letter dated 17 June 2008 was sent by the mother’s solicitors to the father’s solicitors referring to those circumstances and that the mother planned to give birth in Queensland so that she could be with her partner and extended family. The letter enquired as to the father’s approach to a proposition that the child be with the mother implicitly in Queensland between 25 August and 5 October 2008, part of that period being school holidays. The letter concluded “we invite your client to put forward a proposal with which he is comfortable in order to facilitate [the child] spending as much of this time as possible in the company of her mother at this most important time”. No written or verbal response was made by the solicitors for the father to that letter, let alone an acknowledgment of it. The father confirmed, during the course of him giving his oral evidence that was indeed the position. No reason was given.
That approach by the father demonstrated not only a lack of willingness and ability to facilitate the relationship between the mother and the child in an important period of time, especially for the mother, but it showed a certain lack of compassion and sensitivity, if not meanness of spirit. It is not clear to me whether that was brought about by him being overborne by the litigation and the prospect of the child possibly living with the mother on a permanent basis in Queensland as none of those reasons were given by him.
I accept the evidence of the parties that, generally speaking, they have a sincere willingness and ability to facilitate a close relationship between the child and the other party. That has been adversely impacted upon at times due to the longstanding conflict between them with poor communication and probably the strain created by past and current litigation between them. Notwithstanding those matters, the mother has demonstrated a greater willingness to facilitate the relationship between the child and the father in accordance with the specific evidence to which I earlier referred. The father’s attitude shows a propensity to be negative and insensitive as demonstrated by the evidence summarised by me with respect to the mother’s request through her solicitors for the child to spend at least part of the nominated period with her and her partner in Queensland prior to the expected birth of her child, although he did consent, on a past occasion to the child holidaying with the mother in Hawaii.

The likely effect of any changes in the child’s circumstances including the effect on her of separation of separation from either of the parties and any other person with whom she has living

Currently the child is living with the mother during the week in Sydney then on weekends with her and her partner on the Gold Coast subject to periods of time spent with the father and his partner in Sydney, to which earlier reference has been made.
The likely beneficial effects of changes in the child’s circumstances whereby she would live with the mother permanently in Queensland are as follows.
The child would continue to have the daily care and upbringing of the mother assisted by her partner. The mother has been the primary carer of the child since birth and particularly since the parties separated when the child was approximately 17 months old.
There is a loving relationship and close attachment between the child and the mother and there is also a loving relationship with her partner.
The child has a fond relationship with the maternal grandparents and maternal uncle who live within reasonable distance of the mother’s home on the Gold Coast and they frequently spend time with each other.
The accommodation of the mother and her partner on the Gold Coast is suitable and familiar to the child. It is situated in a suitable area.
The child would become part of a family unit on a daily basis which would include the mother, her partner and their expected child.
The mother is more likely to be able to provide more effective parenting for the child as she will not have the anxiety and stress associated with the litigation.
The child may receive the benefits of the mother’s proposal that the parties are required by order to exercise equal parental responsibility in relation to the child which of necessity will require consultation and decision making on major long-term issues affecting her.
The child is likely to have the disadvantage of less potential for more frequent periods of time with the father and practical involvement in her activities as she grows older. That is due to the father continuing to reside with his partner in Sydney. That provides an obvious significant obstacle given the mother’s proposal to be permanently with her partner and the child on the Gold Coast.
The likely beneficial effects for the child of changes in her circumstances whereby the father became her primary carer living in Sydney are that she would have the benefit of the closer relationship with him and the other benefits referred to in the following paragraphs.
The child has a loving relationship with the father’s partner who has assisted the father significantly in the child’s care.
The child has a fond relationship with the paternal grandmother and members of the father’s extended family. They see each other on frequent family occasions.
The father is able to offer suitable accommodation in Sydney which is familiar to the child. The father’s accommodation is in a suitable area.
The child would also benefit from a family unit comprising of the father and his partner.
The father undoubtedly has been experiencing anxiety and stress in relation to this litigation. Implicitly, the father’s parenting would improve should orders be made as sought by him.
Adverse effects of the changes to which I have referred in accordance with the father’s proposal are that the child would have to adjust to no longer having the mother as her primary carer. In addition, the child would also need to adjust to the changes which would be brought about by seeing the mother’s partner less frequently as well as members of the extended family.
The frequency with which the child would see the mother in the future will be significantly reduced as the mother’s proposal is that she will live with her partner on the Gold Coast in the event that an order is not made permitting the child to live with her in that area.
The mother is also less likely to have participation in and responsibility for major long-term issues affecting the child in the event of an order being made which gives effect to the proposal of the father that he have sole parental responsibility and, in addition, less involvement in her future activities.

The practical difficulty and expense of the child spending time with and communicating with the party and the consequential effect upon the child’s right to regularly maintain personal relations and direct contact with both parties

This is a significant matter in these proceedings. It is brought about by the tyranny of distance given that the mother’s proposal is to live preferably with the child, her partner and their expected child on the Gold Coast, as opposed to continuing to live with the child in Sydney as currently occurs. In addition, the orders sought by the father are that the child live with him in Sydney. The mother’s case is that she does not seek an order that the child live with her in Sydney.
I accept the evidence of the father that it is not practical for him and his partner to leave Sydney and commence living on the Gold Coast.
In this regard, there is obvious practical difficulty and expense in the circumstances to which I have referred.
That practical difficulty and expense can be ameliorated, although not entirely overcome, by regular air travel between the Gold Coast and Sydney regardless of whether the child lives with the mother on the Gold Coast or with the father in Sydney, and of course telephone communication and other forms of electronic communication.
Neither of the parties gave evidence that the expense involved in regular interstate travel with the frequency that is proposed by each of the parties would amount to an insurmountable difficulty for either of them.

The capacity of each of the parties and other persons to provide for the needs of the child, including emotional and intellectual needs

There is no issue that each of the parties has the capacity to provide for the physical needs of the child, subject to their limitations of ensuring that the child’s dietary requirements are met. Those limitations have been brought about by the long-standing parental conflict resulting in poor communication between the parties founded upon distrust, personality differences and no doubt the strain of litigation.
The parties agree that the child has allergies and her diet needs to be monitored with certain substances being excluded.
The parties have had disagreements in relation to a number of matters in that regard. Those disagreements have included the child taking a colon cleanse and in relation to the father not providing certain types of food for the child as detailed by the mother in her primary affidavit.
The mother consulted Dr U at his rooms. The child attended. A pathology report dated 11 April 2008 was obtained. A copy of it is annexed to the mother’s affidavit. Disagreements ensued between the parties in relation to the need for a colon cleanse and the father feeding the child with certain foodstuffs including ice-cream and chocolate. Other disagreements developed regarding Dr U’s prescription of enemas for the child. The father consulted a naturopath.
During the course of his oral evidence, the father stated that he had lost confidence in Dr U as in his view he had not been kept informed by Dr U in relation to advice that he had provided to the mother. The father also disagreed with previous advice given by Dr U.

It is remarkable that the parties, who have an undisputed loving dedication to the welfare of the child, should paradoxically have endangered her health as a result of their inability to communicate and resolve issues affecting the child in a constructive and child-focussed way. One would have thought it was obvious that should the father have developed a lack of confidence in the advice provided by Dr U that it would be a relatively simple matter for the parties to obtain a referral to another specialist who the parties could jointly consult.
However, there appears to be some scope for improvement in this regard. The evidence of the mother, which I accept, is that both she and the father have “worked through a lot of those things early this year”. The mother considers that with the benefit of communication counselling which both parties have had and their more direct and appropriate communication of late, there is unlikely to be a repeat of past problems. The father for his part, gave evidence which I accept, that should there be any future problem arising in relation to the child’s diet, then he will consult with the mother.
The parties have the capacity to provide for the emotional needs of the child subject to qualification that their long-standing parental conflict has impacted adversely upon those needs due to the tension that has created to the child’s detriment.
As has been emphasised in this judgment and to considerable degree in the evidence, communication between the parties has been poor for a long period of time. Little is to be gained by providing an analysis of the disputes between the parties which have occurred as a result of lack of effective communication with one exception. This exception relates to the child’s first day of attendance at school this year.
The parties were unable to agree in relation to the attendance by both of them at the same time on the child’s first day at school. The conflict also involved the proposed attendance by the mother’s partner. Ultimately, the matter was negotiated further with the family consultant during the course of the parties’ interview with her on 31 January 2008.
The oral evidence of the family consultant was that she considered it preferable for the parties and their respective partners to be at the school on the day in question due to its importance for the child and her love for them. Agreement had been reached which involved, amongst other things, the father to attend the school on that day in the afternoon. The anti-climax was that the father did not attend, despite the background to this issue. The father’s evidence was that he decided not to as it was raining and it would have involved his attendance for only a short period of time. The father considered it preferable in those circumstances to speak to the child by telephone. Yet, if it was recognised that this was an important day for the child which required agreement to be reached involving the family consultant acting as mediator, it does not illustrate appropriate insight by the father in a child focussed way if the state of the weather meant that the arrangement finally reached was not fulfilled. My impression is that the disagreement between the parties was yet another instance of the power struggle between the parties being elevated to a level above the child’s emotional needs.
The parties have been attending communication counselling with a professional. There appears to have been improvement of late in terms of the use of a communication book and more constructive direct communication between the parties.
The unchallenged evidence of the mother in relation to the father apparently placing a bracelet over a bracelet worn by the child given to her by the mother’s partner and similarly replacing a lunch box and pencil box which the mother’s partner had purchased, shows an unfortunate immaturity and pettiness by the father focussed upon his needs rather than those of the child. Similarly, the father’s failure to reciprocate with cards for the mother on special occasions by such cards being provided by him to the child is another instance of the father’s immaturity.
There is no issue that the parties each have the capacity to provide for the intellectual needs of the child.
Unfortunately, yet another disagreement ensued between the parties this year in relation to the school attended by the child in Sydney as a consequence of the interim orders. Each of the parties expressed valid and understandable reasons for their positions in relation to the area in which the mother should have been renting premises and as a consequence the school to be attended by the child. The difficulty in this regard is a direct consequence of mistrust and poor communication between the parties, resentment in relation to the terms of those orders and the issues to be dealt with in this litigation with the consequential anxiety and stress that no doubt each of the parties has been experiencing, as well as their partners.
There is no evidence of substance which would lead me to conclude that the partners of the parties and members of their extended families have anything other than the appropriate capacity to provide for the needs of the child in all respects so far as it is within their capability and opportunity to do so.

The maturity and sex of the child

Undoubtedly, the child is an intelligent, aware and appropriately sensitive child. The child has the maturity commensurate with a child of her age.

The parental attitude of each of the parties to the child

The parties have demonstrated an appropriate and responsible parental attitude limited at times by conflict and poor communication in relation to matters affecting the child.

Family violence and family violence orders

Fortunately, these matters are not relevant in these proceedings.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the child

Potential difficulties may arise regardless of the substantive parenting orders that may be made. As a result, I am not in a position to give reasons for the preference of a particular order such as that the child live with one party as opposed to another. Indeed, no submissions were made in relation to this matter.

Other relevant facts

An issue which arose was whether it was in effect reasonable for the mother to propose to live with her partner in Queensland due to his alleged need to live there to further his career as a sportsman.
The mother and her partner commenced their relationship in about September 2005. They had been living together in Sydney since May 2006 until October 2007 when the mother’s partner moved to the Gold Coast to commence his training regime. The mother and her partner together with the child then lived together at the Gold Coast for a week in each fortnight, but with lesser periods of time there as a consequence of the interim parenting orders made 20 December 2007.
I accept the evidence of the mother’s partner that he is a professional sportsman. He has trained for the sport since 2001. By 2005 he had established a world ranking. The mother’s partner has been a member of the Australian team since 2001.
The mother’s partner has achieved highly in his sport.
The mother’s partner has represented Australia since 2002.
The mother’s partner has had a longstanding ambition to represent Australia at the 2008 Olympics in Beijing and at future Olympics in 2012 and 2016. However, to qualify he must have a high international ranking. The mother’s partner does not hold such a ranking, albeit that his ranking was much higher with his former team with whom he had realistic prospects of both qualifying and representing Australia.
In 2007 the mother’s partner received an offer to train and be considered to be awarded a scholarship with an institution located in Queensland. By agreement in March 2008 he was awarded such a scholarship and selected for the term 1 March 2008 to 31 December 2008.
The mother’s partner has trained continuously throughout each week since he initially moved to Brisbane, apart from those periods when he was absent for Australian or international competitions.
The mother’s partner trained for a considerable period of time with a highly credentialed leading coach. They conduct a business on the Gold Coast known as M Business.
The evidence of the mother’s partner in relation to his professional sporting career and opportunities, as well as the required training facilities and commitment at appropriate national and international level, was corroborated by his coach, Mr N, and the head coach of the training institution. They were cross-examined. I accept their evidence in relation to the professional expertise, training commitments and the necessary requirement for the mother’s partner to be at the training institution and his future potential and career as outlined in their respective affidavits. Their oral evidence was consistent throughout and I make findings of fact in accordance with the substance of their respective affidavits.
The mother’s partner was not selected in the Australian team for the 2008 Olympics in Beijing. He was not an automatic selection as he did not qualify in accordance with the necessary world rankings. However, the mother’s partner’s success in Australia makes him a potential member of the team for the 2008 Olympics in Beijing should an opportunity arise, presumably due to the unavailability of a member already selected.
Affidavit evidence had previously been given by the mother in her Affidavit sworn 8 June 2007, a copy of which is Exhibit 8. The evidence so given stated:
“8.[The mother’s partner] will be representing Australia at the Beijing Olympics in 2008 and has now commenced his qualification trials and training towards that event.”
That evidence was clearly wrong in that the mother’s partner had not been selected in the Australian team for the 2008 Olympics in Beijing, although he had aspirations which may well have come to fruition.
I accept the evidence of the mother’s partner. My observations of him whilst giving his evidence lead me to conclude that he is a witness of truth. The mother’s partner made concessions and acknowledgments against interest when required and otherwise gave his evidence in a frank and sincere manner. I accept his evidence and make findings accordingly.
Accordingly, I find that the mother’s partner is bona fide in his career aspirations as a professional sportsman and it is reasonably acceptable for the reasons he gave, to live on the Gold Coast, including the benefit of attending the training institution with coaching from two of Australia’s leading coaches which would be unavailable to him should he be resident in Sydney. Comparable facilities and coaching do not exist in Sydney. The mother’s partner’s business activities with his coach are at the Gold Coast.
I further find that based on the evidence which I have accepted as indicated by me, the mother’s partner’s ambition to further develop his career as a professional sportsman in Queensland is reasonably based. The mother’s partner is not resident in Queensland on a whim or fanciful basis.
The mother and her partner are married. As was readily conceded by the father, it is reasonable for the mother to want to live with her partner and their child as a family unit on the Gold Coast.

The extent to which each of the parties has fulfilled or failed to fulfil their responsibilities as a parent

I have dealt with this matter under previous relevant sub-headings. Accordingly, there is no purpose to be served by reiterating and reviewing evidence and findings in that regard.

Conclusion

During the course of counsel’s oral submissions, I raised an issue for further consideration, namely whether Part VII enacted as a consequence of amendments to the Act which came into force on 1 July 2006 required reconsideration of the constitutional right of freedom of movement the subject of earlier judgments.
Written submissions were subsequently lodged.
There is common ground in those submissions to the effect that Part VII is a valid exercise of the legislative power notwithstanding s.92 of the Constitution.
It was further submitted that that is particularly so as potential parenting orders relate to a child’s residence as opposed to the place of residence of the parents.
The issue had been considered prior to the 2006 amendments to the Act. Repealed s.65E was in the same terms as the current s.60CA, namely:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
The Full Court’s unanimous judgment in B and B; Family Law Reform Act 1995 held that:
“10.43There can be little doubt that a general right of freedom of movement is a right recognised by Australian law, but in proceedings under Part VII it is a right that cannot prevail over what is considered to be in the best interests of the children in a particular case.”[8]
[8] B and B (1997) FLC 92-755 at 84,231
The High Court by its majority judgment in AMS v AIF held in relation to the Family Law Act 1975 (WA) that:
“The 1975 WA Act did not in terms apply to impose a burden or restriction upon movement across the borders of Western Australia. Rather, subject to the operation of s 109 of the Constitution, the 1975 WA Act empowered the State Family Court to impose a burden or restriction upon movement by orders made in exercise of its discretionary powers with respect to the custody and guardianship of children.”[9]
[9] AMS v AIF (1999) FLC 92-852 at 86,026
The High Court further stated that whilst the practical operation of the exercise of power:
“…is to hinder or restrict such movement by the mother by reason of the requirement that she not change the principal place of residence of the child. This of itself would not be fatal to validity.”[10]
[10] AMS v AIF, ibid
Subsequently, the High Court reconsidered the issue in U v U. The majority judgment held:
“That whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by movement of a parent.”[11]
[11] U v U (2002) FLC 93-112 at 89,090
The issue was not controversial having regard to the written submissions of counsel.
Consequently, Notice was not furnished to the Attorney-General for the Commonwealth. Therefore, I accept the substance of the conclusions put forward in the written submissions.
As a result, I have concluded that the law in relation to this issue, the subject of the judgments to which I have made earlier reference, continues to apply.
These proceedings are concerned with the future living arrangements for the child. The issues raised of necessity involve a potential significant change to the place where the child will live, namely Queensland as opposed to New South Wales. The issue having been raised in these proceedings and in other similar proceedings are referred to in a shorthand way as a “relocation case”. As has been emphasised in past judgments, and recently in Taylor and Barker:
“The preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least insofar as that approach is possible.”[12]
[12] Taylor and Barker (2007) FLC 93-345 at 81,912 per Bryant CJ and Finn J
I have determined that there will be an order which recognises the presumption of equal shared parental responsibility pursuant to s.61DA(1) of the Act. This will ensure that the parties will exercise equal joint parental responsibility in relation to the major long-term issues in relation to the child as defined in s.4(1) as follows:
“…means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”
The order sought by the mother is that there be an order for equal shared parental responsibility.
The order sought by the father is that he have sole parental responsibility for the child. However, in the minute of order previously sought by the father, he set out an alternative, namely that in the event of an order being made that the child lives with the mother in Queensland then an order should be made that the parties have equal shared parental responsibility for the child. That latter order was no longer sought, as is made clear from Exhibit 4a.
In support of the order sought by the father, it was submitted that the presumption of equal shared parental responsibility in s.61DA(1) had been rebutted on the ground that it would not be in the best interests of the child for them to have equal shared parental responsibility for her as provided in s.61DA(4).
Counsel for the father submitted that the ground in s.61DA(4) had been established due to the historical level of conflict between the parties; the distance between the parties; the evidence of the family consultant of difficulties re communication between the parties; and the consequential adverse effect upon the child.
During the course of outlining those submissions, it was clear that counsel for the father sought findings that the level of conflict between the parties was largely instigated or maintained by the mother due to the historical litigation between them; her long-standing desire to live in Queensland with the child; and the variety of difficulties that she allegedly had created in the maintaining and furthering the relationship between the child and the father.
I do not accept those submissions made by counsel for the father. Whilst it is obviously correct that there had been prior parenting proceedings between the parties culminating in the consent orders and that the mother had a historical desire to live with the child in Queensland, it does not follow that seeking a court in the past to rule on that issue was irresponsible or, that the new circumstances that have arisen in terms of the relationship between the mother and her partner consolidated by their marriage last year and the circumstances relating to the mother’s partner’s ambition to establish himself as a professional sportsman with associated business interests in Queensland, that this resulted in an unacceptable approach by the mother. Indeed, I have made findings to the contrary.
So far as the regrettable lengthy history of poor communication between the parties, I have accepted the mother’s evidence (unchallenged) that of recent times communication between the parties had improved which gave renewed hope for the future. The parties have had the benefit of professional communication counselling.
In addition, I have made findings in relation to the capacity of the parties to provide for the needs of the child. Those findings reflect the mother being more proactive than the father so far as promoting the relationship between the child and the father.
I have not lost sight of the dispute between the parties as a result of the mother’s move from the north side of Sydney to inner Sydney. From a practical viewpoint, there was clearly a small window of opportunity to secure suitable accommodation between the date of the interim orders and the short period of time that would elapse before the commencement of school for the first term of this year. I have found that each of the parties had valid reasons for the approach they took to that issue.
I find that it is very much in the child’s best interests for the parties to continue to be empowered and encouraged to further the improvement that has been made in the communication between them and to lessen the potential for future conflict and resentment which may well arise should one party have the sole decision-making power in relation to all or any of the major long-term issues affecting the child. Rather, the parties should be encouraged to exercise that responsibility in a joint and constructive way which I consider will be promoted by the presumption of equal shared parental responsibility being maintained by way of an order.

I have also determined that it is in the child’s best interests for her to live with the mother and that she may live with the mother in South East Queensland. My reasons are as follows.
The mother proposes that the child live with her, her partner and their expected child in their accommodation on the Gold Coast in South East Queensland. In addition, the mother proposes that the father be able to spend periods of time with the child during school term on the first and third weekends of each month as well as half school holiday periods.
In addition, the mother also proposes that the child spend further periods of time with the father in Queensland upon certain terms.
The proposal of the father is that the child live with him and his partner in Sydney. The father further proposes that the child spend periods of time with the mother each alternate weekend, the first of such weekends to take place in Queensland and the next alternate weekend to take place in Sydney. The father also seeks an order that the child be able to spend half of school holiday periods with the mother.
Each of the parties proposes that the child spend periods of time on specified occasions with the other party and that there be a variety of forms of communication between them.
I have considered the benefit to the child having a meaningful relationship with each of the parties.
The interpretation of the words “a meaningful relationship” has been the subject of a number of judgments. The legislation requires that this particular matter be a primary consideration. The legislation does not provide a definition of a “meaningful relationship” nor do its provisions “purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case”.[13]
[13] Godfrey and Sanders (2007) 208 FLR 287 at 298 per Kay J
I will follow the interpretation provided by Kay J that “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship” [emphasis added].[14]
[14] ibid
I also follow the interpretation given by Brown J:
“That when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative objective, not a strictly quantitative one.”[15]
[15] Mazorski and Albright (2007) FamCA 520, para. 26
As s.60CC(2)(a) makes clear, it is not enough to simply focus on “a meaningful relationship with both of the child’s parents” but there is the requirement to link it to “the benefit to the child” of such a relationship.
I am satisfied on the balance of probabilities that the child will not only have an “important, significant and valuable” relationship with each of the parties should she live with the mother compared to the father, but that she is more likely to have “the benefit” of such a relationship living with the mother.
In that regard, I rely upon the findings of fact that I have made which has shown a greater and more consistent willingness on the part of the mother compared to the father and ability of the mother to encourage the close relationship between the child and the father. I have also found that the mother has a greater capacity than the father to provide for the child’s emotional needs. For those reasons, I do not accept the assessment provided by the family consultant in Exhibit 2. The family consultant had limited information for the purpose of her assessment in that she obviously could not have been privy to all of the evidence adduced in the hearing before me.
With regard to each of those findings, I refer to and rely upon paragraphs 57 to 64 and 99 to 101 of this Judgment.
I have concluded that the family consultant’s opinion in relation to the weight to be given to the child’s expressed wishes with regard to living with the mother in Queensland is accepted by me having considered all of the relevant evidence and findings that I have made. To that end, my approach is in accordance with the submissions made by counsel for the father.
The child has a loving and close relationship with each of the parties and similar attachments to them according to the evidence of the family consultant which I accept, quite apart from the evidence of the parties themselves.
It is particularly to the credit of the mother that such a relationship has both developed and been maintained between the child and the father, given that she has been the primary carer of the child since the parties separated when the child was only approximately 17 months old and notwithstanding the conflicted relationship between the parties which has ensued for most of the period since that time. Should the mother have the personality sought to be painted by the father, in the evidence before me, of her alleged hatred of the father or alternatively, negativity towards him, then that would surely have impacted upon the child and her relationship with the father given her young age and consequential emotional vulnerability. Fortunately, for the child and the parties, that has not occurred.
The child will also have the benefit of the continued primary care that the mother has provided to her since a very young age. The child has blossomed and progressed well according to all of the evidence before me. It is only natural that at times the child has shown signs of anxiety which I infer as being directly as a result of the conflicted relationship between the parties, no doubt enhanced by the litigation between them and the issues that such litigation has required for determination.
The child will also have the benefit of a close family unit in the mother’s household comprised of the mother, her partner and their expected child. Amenities and surroundings of that accommodation are suitable and secure. There will be the support of the maternal grandparents in particular, apart from the maternal uncle. The child has a fond relationship with all of them.
I have not overlooked the fact that were the child to live with the father then he too can offer a stable and loving family environment comprised of himself and his partner supported by regular family gatherings with members of his extended family with whom the child also has a fond relationship.
As I will make an order reflecting the presumption of equal shared parental responsibility, I am required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests, or failing such an order being made, whether it is in the child’s best interests to spend substantial and significant time with each of the parties.
Given the interstate residences proposed by each of the parties, it is obviously not reasonably practicable for the child to spend equal time with each of them, or arguably substantial or significant time as defined in s.65DAA(3). Indeed, quite sensibly neither senior counsel for the father or mother made submissions that I should make orders reflecting either of those concepts.
However, the opportunity is there for the father to spend additional periods of time with the child beyond those that I will precisely order, given that the father may spend additional time with the child in Queensland and the parties may agree upon alternative or other periods from time to time.
In my view, this is a finely balanced case. The issues in these type of proceedings and the possible outcomes present much disappointment for the parent who has not succeeded in having an order made that a child live with him or her as the case may be. This case is no different.
However, I have concluded for the reasons given by me, based on my findings of fact, that the paramount interests of the child will be best served by the arrangements provided for in the parenting orders that I will make.

I certify that the preceding one hundred and seventy four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Date: 15 August 2008 (as amended pursuant to the Slip Rule (Rule 17.02)

[2008] FamCA 686

14 August 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

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