RYCROFT & HAMLETT

[2018] FCCA 1506

FEDERAL CIRCUIT COURT OF AUSTRALIA

RYCROFT & HAMLETT [2018] FCCA 1506

Catchwords:

FAMILY LAW – Parenting – relocation – relocation in best interests of child – child to continue living with mother.

Legislation:
Family Law Act 1975, ss.60 CA, 60B, 60CC, 61DA, 64B, 65D, 65DA, 65DAA, 64DAB

Cases cited:
MRR & GR (2010) 240 CLR 461
Sigley & Evor (2011) 44 FLR 439

Applicant: MR RYCROFT

Respondent: MS HAMLETT

File Number: BRC 5094 of 2011

Judgment of: Judge Egan

Hearing dates: 5 and 6 June 2018

Date of Last Submission: 6 June 2018

Delivered at: Maroochydore

Delivered on: 8 June 2018

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr Bolovan

Solicitors for the Respondent: Genuine Legal

Counsel for the Independent Children's Lawyer: Mr Bunning

Solicitors for the Independent Children's Lawyer: SJP Law

ORDERS

1. That the parties have equal shared parental responsibility for the child, [X], born on 2009 (“the child”).

2. That the parties shall consult with each other about decisions to be made and the exercise of their equal shared parental responsibility as follows:

   (a)Each shall inform the other party about the decision proposed to be made.

   (b)Each shall consult with the other with the view to reaching terms upon which they may agree.

   (c)Each shall make a genuine effort to come to a joint decision with the other party.

3. That, notwithstanding the provisions of paragraph 2 hereof:

   (a)The father shall be responsible for the day-to-day care, welfare and development of the child at all times when they are living with or spending time with him.

   (b)The mother shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with or spending time with her. 

4. That the child be re-enrolled at the School A Primary School commencing term 3 of the gazetted Queensland school calendar, on or about 8 July 2018.

5. That the child live with the mother.

Time with the father

1. That the child is to spend time with and communicate with her father as agreed between the parents and if they fail to agree then as follows:

   (a)During the school terms in 2018

   (i)Commencing on the first weekend into Term 3 2018, for two (2) out of three (3) weekends from after school on Friday until 5:00pm on Sunday.

   (ii)The father’s school term time is to be suspended during the school holiday period and recommence after each school holiday period as follows after the Easter school holidays, after the June/July holidays and after the September/October school holidays.

   (b)During the 2018 school term the child shall be collected by the father from school at the commencement of his time and returned to the mother at Service Station.

   (c)For the school holidays in 2018 the father is to spend time with the child in the first half of each school holiday period with that holiday period to commence at 9:00am, on the day after the school term finishes and to conclude on a day to be calculated with reference to Order 14 herein, with the child to be collected by the father to and from Service Station.

School terms commencing 2019 and each year thereafter

(d)Commencing on the first weekend in Term 1, for two (2) out of three (3) weekends, from after school on Friday until before school on Monday, with the father to collect and return the child from school.

School holidays commencing 2019 and each year thereafter

(e)In 2019 and each alternate year thereafter the father is to spend time with the child in the first half of each school holiday period with that holiday period to commence at 9.00am, on the day after the school term finishes and to conclude on a day to be calculated with reference to Order 14 herein.

(f)In 2020 and each alternate year thereafter for the second half of each school holiday period with that period to commence and conclude on a day to be calculated with reference to order 14 herein.

Calculating school holiday periods from 2018 and thereafter

1. That for the purpose of these orders school holidays shall be deemed to commence at 9.00am on the day after the school term finishes and conclude at 5.00pm on the day before the first day of the new term and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights then the father shall retain the additional night.

Recommencement of school term time after school holidays

1. That commencing in 2019 and each year thereafter the father’s term time with the child referred to in Order 8 is to be suspended during the school holidays and when the father spends time with the child in the first half of the school holidays his term time is to recommence on the first Friday of the new school term and when the father spends time with the child in the second half of the school holidays his time is to recommence on the second Friday of the new school term.

Christmas:

1. That in 2018 and each alternate year thereafter, the child is to spend time with the father from 9.00am on Christmas Eve until 9.00am on Boxing Day and with the mother from 9.00am on Boxing Day until 9.00am on 28 December 2018.

2. That in 2019 and each alternate year thereafter, the child is to spend time with the mother from 9.00am on Christmas Eve until 9.00am on Boxing Day and with the father from 9.00am on Boxing Day until 9.00am on 28 December 2019.

Mother’s and Father’s Day:

1. That if Father’s Day falls on a weekend that the child is not spending time with the father, the child is to spend time with the Father from 12.00pm on Saturday until before school on Monday.

2. That if Mother’s Day falls on a weekend that the child would ordinarily be in the care of the father, the child is to remain with the mother for that weekend and the father’s weekends are to resume in the following week.

The Child’s Birthday:

1. That should the child’s birthday fall on a school day, the child is to spend time with the father for a period of two (2) hours after school on that day.

2. That should the child’s birthday fall on a weekend when the child is not ordinarily with the father pursuant to these orders, the child is to spend time with the father from 9.00am until 12.00pm on that day.

Communication with the child:

1. That telephone communication with the child for each parent is to be permitted at all reasonable times but not more frequently than one call each day.

Overseas Travel:

1. That both parents are to execute any documentation necessary to give effect to the child being issued her own Australian and (nationality omitted) passport and the costs of such application be shared equally between the parties.

2. That should the father fail or refuse to execute any such documents, the requirement for the father’s signature on the passport application for the child be dispensed with and an Australian passport issued to the child.

3. That the passport is to be held by the mother

4. That in 2019 and each alternate year thereafter and upon the mother giving three (3) months written notice to the father of her intention to do so, the mother is permitted to take the child overseas for a period of up to six (6) weeks provided not more than three (3) weeks of that period is during the school term.

5. That in 2020 and each alternate year thereafter and upon the father giving three (3) months written notice to the mother of his intention to do so, the father is permitted to take the child overseas for a period of up to six (6) weeks provided not more than three (3) weeks of that period is during the school term.

6. That prior to the child travelling overseas with either parent pursuant to orders 26 or 27 herein, the travelling parent is to provide the other with an itinerary of the planned travel arrangements and contact telephone numbers to ring the child while she is travelling.

Specific Issues:

1. That the mother and father are to:

   (a)Keep the other parent informed at all times of their residential address and land-line contact telephone number.

   (b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child.

   (c)Inform the other parent as soon as is reasonably practicable of any medical condition, significant health issue or illness suffered by the child.

2. That this order authorises any treating medical practitioner to release the child’s medical information to the other parent.

3. That the parents authorise by this order the school attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificate and awards obtained by the child (at the parent’s cost)

4. That during the time the child is with either parent that parent shall:

   (a)Respect the privacy of the other parent and not question the child about the personal life of the other parent

   (b)Speak of the other parent respectfully

   (c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

5. That the process to be used for resolving disputes about the terms or operation of these orders shall be as follows

   (a)They shall consult with a Family Dispute Resolution Practitioner to assist in resolving any dispute or reaching agreement about changes to be made.

   (b)They shall pay the cost of the Family Dispute Resolution Practitioner equally.

   (c)In the event that they cannot agree on a Family Dispute Resolution Practitioner, the mother shall nominate three practitioners and advise in writing details of their fees, experience and availability

   (d)The father shall choose one of the listed practitioners within seven days of receipt of the list. If the father fails to choose the mother may choose.

6. That before any application is made to a Court for a variation of these orders to take into account the changing needs of the child, each party is to take the steps referred to in Order 26.

IT IS NOTED:

A.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MAROOCHYDORE

BRC 5094 of 2011

MR RYCROFT

Applicant

And

MS HAMLETT

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. By an initiating application filed by the father on 19 January 2017, the father seeks an order that the child, [X], live with the father and spend two out of three weekends with the mother.  As an alternative it is sought that there be shared care arrangements “if the mother’s lifestyle and address permit it.”  I’m uncertain as to what is meant by that vague reference, but I assume it is meant as a reference to the mother living closer to the father’s residence at Town Y than she presently does.

2. The respective residency situations of the father and mother are as follows.  The father is married to a woman called Ms A.  They live in Town Y in a five‑bedroom home owned by Ms A’s mother.  There are two children of a former relationship of Ms A who live in the household.  Those children are [A], aged 17, and [B], aged 12.  There are also two children of the relationship between the father and Ms A who live in that house.  Those children are [C], aged 5 years, and [D], aged 2 years.

3. As stated, the home is owned by Ms A’s mother, who lives in a granny flat on the ground floor.  Town Y is a pleasant semi‑rural village situated about (time omitted) drive from Brisbane CBD. The mother lives in a shared house arrangement with another woman and that woman’s son, at Town X.  The child [X] the subject of these proceedings was born on 2009.  I note in that regard that in the father’s initiating application filed on 19 January 2017, the father has incorrectly recorded the date of birth of the child [X] as being 2008.  The child is just over nine years of age, not just over 10 years of age.

4. The current application filed by the father mirrors an application, also made by the father previously, in relation to the mother’s having changed her place of residence from Town Y to Suburb E in Brisbane.  A trial concerning that move on the part of the mother was held before her Honour Judge Spelleken on 1 November and 2 December 2013.  Her Honour delivered judgment in that matter on 24 January 2014.

5. Her Honour made orders that the child live with the mother and spend half school holidays and two out of three weekends with the father.  Since the making of those orders, the father readily conceded at trial that the mother has never sought to discourage the child from having contact with him and with her siblings.  It transpired that the mother lived in Suburb E for about five years before moving to Town X in 2017.

6. That move from Suburb E in Brisbane to Town X was criticised by the father as constituting an unnecessary upheaval of the child’s life. He stated that such relocation would have a “huge impact” upon the child, [X]. What transpired in evidence was that the mother stated that she intended to move from Suburb E to Town X to improve the lifestyle of herself and [X], and for them to live in an idyllic environment, still in circumstances where she would maintain contact – regular contact - with the father and her siblings, as well as the father’s extended family.

7. I note that the time ordered to be spent by the child [X] with the father, consequent upon the making of the orders by Judge Spelleken, was replicated both in respect of the time spent by the child whilst living with the mother for five years in Suburb E as well as for the one and a half year period that the child has lived with the mother in Town X.  I also note that such time has been religiously undertaken and has been enjoyed by the child [X].

8. It must be said that the father has, for the whole of the child’s life, lived in Town Y, and that to that extent he has presented as a stable father living in stable residential circumstances.  I might add that there is no suggestion that there are any risk factors associated with the child spending time with the father or his wife or siblings in Town Y.  It is apparent that the child, [X], is a much loved child who is adored by both of her parents.

9. It is also apparent from the evidence that the child has, for the whole of her life, been in the care of the mother as the primary caregiver.  The child is nine years of age and is approaching a time in her life where the bond between mother and daughter is extremely important, a fact which has not been lost upon me.  It is also clear from the evidence that the child has been very happy for the whole of the time that the child has lived with the mother.

10. There is no suggestion that the mother does not care properly for her or does not properly have her best interests at heart, insofar as her physical wellbeing is concerned.  Rather, what is suggested by the father is that the child ought not to be the subject of moves on the part of the mother, at the whim of the mother, more befitting of a need to meet the mother’s requirements rather than to have due regard to the paramount interests and welfare and wellbeing of the child.

11. In that regard I had the benefit of examining each of the father and the mother during the course of their giving evidence at trial.  I gained the impression that the father was someone who, in respect of the mother, exerted his will toward her either in a conscious or subconscious way such that the mother felt intimidated.  That was not only in relation to email correspondence that had been directed by him to her over the years in respect of her intentions about moving from Suburb E to Town X, but also generally.

12. There was a history of a domestic violence order having been issued, on the mother’s behalf, by police; an order which was the subject of consent without admission.  The father presented himself well at trial.  I have no doubt that he cares greatly for the child and that he believes that a change of residency for the child and a change of schooling would be in her best interests.

13. I have observed the father to be enthusiastic about the life able to be spent by the child with his wider family in Town Y.  He expounded in evidence, in glowing terms, the benefits of the child attending a humanist school run by a group called the School C. When asked what are the elements of humanism he wasn’t quite as articulate as he was in expounding the general benefits of the philosophy of the School C group, but nonetheless he was enthusiastic about the prospect of having [X] enrolled at such a school and he ought to be commended for that.

14. He enthusiastically referred to how, if so enrolled, the child would be collected every morning by the “(name omitted) bus” and taken to school in that bus, returning of an afternoon to a bus stop close to a park and close to his office in Town Y.  I gained the impression that the father was someone proud of his being the pre‑eminent male in a group household.  Evidence was given to the effect that he and his wife sleep in a large open living area with all of the children.  That is, himself, Ms A, [A], [B], [C], [D] and [X], when [X] is visiting pursuant to court orders.

15. When asked about whether he had considered that [B], aged 12, and [X], aged nine and a half, might more readily be comfortable sleeping in their own rooms, he initially seemed somewhat surprised by the question, but then was amenable to considering such an arrangement.  It may be that the father has somewhat of a rose‑coloured glass tinge to his view of the world, vis-à-vis what is in the best interests of the child.  I have no doubt that the living environment in Town Y is comfortable and is one in picturesque settings.  That, though, ought not confuse the real issue in this case.  Namely, whether the child [X] ought to be separated from her mother, as the primary caregiver, in relation to a proposed move by the mother back to Suburb E.

16. Some background history to this matter is important.  The mother emigrated from (country omitted) to Australia, with her then husband, in 1998.  All of her extended family currently lives in (country omitted).  She is very close to [X] and, having seen her give evidence, I was very impressed with the emotion shown by the mother when trying to convey to the court her intense desire to not only provide well for the child [X], but also to be a role model for her.

17. The issue of relocation was alive and well in this case and is something which I will address in circumstances where I find that the mother’s intention to move from Suburb E to Town X was entirely motivated by trying to ensure that the best interests of the child were furthered.  As it transpires, the mother had previously moved from Town Y to Suburb E in circumstances where a consent order was made on an interim basis permitting her to do so.  To that extent it cannot be said that it was a move which was not the subject of consensus.

18. It was a move that was ultimately challenged by the father, but, as indicated earlier, her Honour Judge Spelleken made orders in early January 2014 that the child live with the mother.  The child did live with the mother in Suburb E, as I have said, for a period of five years.  After the breakup of a relationship, and feeling somewhat lost, the mother considered, in circumstances where she was and had always been the primary caregiver to the child, that a move to idyllic circumstances in Town X would be best for the child.

1. As I have already said, I believe the mother when she said that she genuinely believed that that would be the best move, on a long‑term basis, for her and the child [X].  As it transpires, her rose‑coloured vision of life in Town X was not one which afforded to her, her dual desires.  Namely, to provide the best environment for the child [X] to grow up in and secondly, to be a role model to the child.

2. It’s important in that regard to record that the mother has qualified as a (occupation omitted).  She is not a (occupation omitted).  She obtained a (qualifications omitted), those qualifications having been obtained in 2012 and 2015 respectively.  She is known as a (occupation omitted).  (employer omitted) is, on her evidence, well‑known. She is accredited by that (employer omitted) as a recommended (occupation omitted), as well as having been accredited by an (organisation omitted).

3. I believe the mother when she said that it had been, and was, difficult for her to expand her clientele whilst living at Town X, when out of a total of 20 clients only five lived in and about the Town X area.  I have no doubt that the mother wants to show to her child that she is a good role model and that she can provide for her.  She said as much in her evidence and I believe her in that regard.  I don’t believe that the father understands that that is such an important aspect of the mother’s role as a parent to the child [X].  The father, to my mind, merely looks at the obvious fact of a move and a change in arrangements in respect of the child, [X], immediately decrying any such move or intended move as one which would have a huge impact upon the child.

4. It would appear that the child is a very resilient child, well able to manage any move that does not restrict her time with the father and her other siblings.  She said as much when answering questions put to her by the family report writer.

5. Indeed, I found the father somewhat disingenuous in his approach to the mother’s move in January 2017.  In that regard, the father gave evidence that in late December 2016 and early January 2017 he became aware of Facebook posts placed by the mother indicating that she was considering a change of residence from Suburb E to Town X.

6. There is evidence that, from as early as 4 January 2017, the father attempted to persuade the mother not to move from Suburb E to Town X.  The first reaction on the part of the father, though, was not to make contact with the mother when he heard about that intention, but rather to approach legal aid.

7. I find that in doing so, his real concern in the matter was to ensure that he could strategically, by legal means, achieve what he didn’t achieve in the parenting proceedings before Judge Spelleken. 

8. It is clear that the father had email contact with the mother concerning the intended move.  In an email dated 19 January 2017 sent by the father to the mother at 8.30 pm that day (being annexure 2 to an affidavit filed by the father on 8 March 2017) the father was appealing to the mother not to make the move, the start of school being four days after that date.

9. Whilst on the one hand he was outwardly purporting to seek some consensus regarding the issue, the father did not tell the mother that he had, at a time earlier on that very same day, caused to be filed an initiating application seeking an order from the Federal Circuit Court of Australia that the child be removed from the primary care of the mother to live with him, and that the two out of three weekends and half school holiday arrangement be turned on its head, such that the child was to spend such time with the mother, rather than the father.

10. The mother gave evidence that on 18 January 2017 she attended at the father’s home in Town Y, at which time she felt intimidated and threatened.  I can well understand that the mother, who is strong but physically slight, would be intimidated by the father who I find to be a very forceful individual.

11. I see this case, as indicated earlier, as almost a replica of the earlier case decided by her Honour Judge Spelleken.  The difference in this case, however, is that there is no suggestion on the part of the mother that the current time to be spent by the child with the father and her siblings, should there be a move to Suburb E from Town X, be affected in any way.

12. The evidence of the mother, which I accept, is that the time spent travelling from Town Y to Town X is one hour five minutes, whereas the time travelling from Town Y to Suburb E is one hour thirteen minutes.  The difference in timing between the two is miniscule.  I see no reason why a change to Suburb E could, in the context of travel, be seen as, in any way, being substantially different from the current travelling time from Town Y to Town X.

13. It is in that context that the father has portrayed that a solution to the time issue could be one whereby the mother live within a 30 kilometre radius of Town Y, such that an equal shared time arrangement could be put in place, and that a shared time arrangement would then be the best scenario for the welfare of and in the best interests of the child.

14. Exhibit 2 tendered on behalf of the father is a copy of a google map showing the towns which exist within a 30 kilometre radius of Town Y.  Part of that exhibit records the distances between Town Y and those many towns and townships.  It was suggested to the mother in cross‑examination that she could very well live within that 30 kilometre radius and still access her clients and grow her client base in Brisbane.  One notable township put forward as a suitable place for her to live with the child, [X], was Town Z.  Town Z is said to be 21.6 kilometres away from Town Y.  It is suggested that such a drive is not substantial, particularly if the child is living on a week about shared time basis.

15. I disagree with that proposition.  To drive 21.6 kilometres not only on the flat, but up and down winding mountain and country roads on a daily basis, each day, for each alternate school week is, to my mind, excessive and deleterious to a stable educational experience on the part of the child.  Those comments apply equally to any of the places on the coast to the east of Town Y which rests on a north/south running high ridge.

16. Moreover, though, the mother was adamant that she wanted to live in a place which was of a higher socio-economic value than any of the places within that 30 kilometre radius.  The contradistinction between Town X and any of the towns within that nominated 30 kilometre radius, as well as Town Y, is that Town X is recognised as having high socio-economic criteria. That is also the case with Suburb E.

17. The mother, I find, is highly focussed on the issue of her proving to her daughter that, notwithstanding that she does not have family living near her in Australia, and notwithstanding that she has not grown up in Australia with old friendships able to be called upon, she can nevertheless demonstrate to her daughter that through hard work as a (occupation omitted), she will succeed in life, raising her daughter with her and enabling her daughter to be proud of her.

18. That issue was canvassed by me with the mother at the end of her cross-examination.  I asked her the following question:

    If I was to order you to move closer to Town Y, so that [X] could have more contact with her father and you refused to do that, would you move?

19. And she said, in answer:

    No I would not.

20. I then asked her:

    What if failing complying with the order meant you lost full time primary care with [X]?

21. Her answer was that it was her belief that she must act in accordance with [X] and her best interests:

    I want my child to have a good role model.

22. I then asked her:

    So you would still move to Suburb E?

23. To which she replied, yes she would.

24. When asked:

    If [X] is not with you how can that, in your view, benefit [X], if you think that [X] should live with you?

25. Her answer was that [X] was nine years old and that when she was older she would choose herself where she wanted to live.

    I would be able to provide more by staying in Suburb E and provide better and more in the future.  Suburb E would be the wiser decision in the long term.

26. I then asked:

    Do you accept that that consequence of your not obeying the order would be that the child live with the father almost full time and you would have contact every two weekends out of three?

27. Her answer was:

    I do.  I have thought about this for one year and four months.  I have looked at all the options and opportunities how I would support [X] and I, and where it would go from here.  I have done all the research for housing.

28. I found her evidence in that regard compelling.  I observed her during the course of the giving of that evidence as well as during the whole of her cross-examination and I have no doubt that she feels very strongly that she ought to remain as the primary caregiver of [X].  As the primary caregiver for the child over most of the child’s life, she has, no doubt, a very good appreciation of the child’s nature and comprehension of matters at large.  I find that the mother is best placed to make decisions regarding the child’s future welfare and wellbeing, rather than the father or a family report writer who has only seen the mother on one occasion on 19 March 2018.

29. Turning to that family report, it is recorded that, on 19 March 2018, interviews were conducted with the father, Ms A, the mother, the mother’s present share accommodation friend, called Ms Z, the child [A], the child [B] and the child [X].  The two youngest children, [C] and [D], were not interviewed for obvious reasons, relating to their age.

30. What is significant in relation to the timing of that interview was that the mother was interviewed in circumstances where she was highly anxious and agitated as a result of actions caused by the father, when the father well knew that his actions would have had that result upon the mother prior to the interview.

31. 19 March 2018 was a Monday.  Pursuant to court orders, the child, [X], has always been collected by the mother on a Monday morning at the Town Y .  19 March 2018 was to be, in the eyes of the mother, no different from any other Monday, when she would collect the child after time being spent with the father.  However, gratuitously and unilaterally, and well knowing that if there was any disruption to the usual changeover arrangement, the mother would become distressed and confused, the father withheld the child, [X], from the mother.  And, notwithstanding contact by the mother asking for the usual (location omitted) changeover, the father refused to deliver the child back to the mother as per the usual arrangement.

32. The father, during the course of his cross-examination of the mother, asked a question which evoked that previously unrecorded and undocumented exchange in relation to the (location omitted), unrecorded in the sense that that had not been adverted to in any of the material filed in the proceedings.  The father had the opportunity to put to the mother that what she had said was untrue, but he failed to do so.  I find that the father was deliberately manipulative of the situation, in order that he might seek a benefit from the mother being agitated and upset later that morning when she attended before the report writer, Ms R.

33. Turning to the report of Ms R, I consider that Ms R has over emphasised the nature of the intended move from Town X back to Suburb E as being one which would detrimentally affect the welfare and wellbeing of the child.  The mother’s evidence, which I accept, is that since she has lived in Town X, from early January 2017 until the present, she has maintained contact with people she had previously known in Suburb E.  Her evidence, which is uncontested, was that former school friends of [X] have remained in contact with [X] at the behest of the mother during her weekend visits to Suburb E since January 2017.  That fact was not, in my view, satisfactorily or appropriately appreciated by Ms R.

34. Further, Ms R seems to have fallen into the position of having assumed that the moves by the mother were “flighty” as adverted to in paragraph 66 of her report.  I don’t believe that Ms R fully appreciated that the move from Town Y to Suburb E in 2012 was the subject of a consent order, nor do I accept that Ms R ought to have ascribed to the mother a flighty disposition, simply in circumstances where her move from Suburb E to Town X in early 2017, though done with the best of intentions, was later properly recognised by the mother, having the best interests of the child at heart, as having been a flawed decision and one which ought not to have been made.  That being so, the mother has expressed an intention to return to Suburb E, a place familiar to the mother; a place close to where the mother is able to expand her clientele; a place familiar to the child, [X]; a place where there are existing friendships of [X], such that any transition back to schooling in Suburb E will be back to an established school peer friendship group; and a place which has well-recognised educational credentials. 

35. In her evidence, the wife impressed me when she stated that, not only had she been investigating accommodation availability in and about Suburb E, but that she was seeking accommodation which she said was readily available close to Suburb F.  Suburb F is the hub of many social, cultural and artistic activities, and my impression of the mother is that she would well fit into the environment of living in and about Suburb E with such cultural, artistic and recreational pursuits readily available. 

36. She gave evidence that her hourly charge‑out rate as a (occupation omitted) is $100.00, an amount which is not insignificant.  If she was living in Suburb E, I find on the balance of probabilities, that she would be able to extend her clientele, thereby not only seeking to attain self-reliance economically, but also demonstrating to her daughter that she is a person of worth who is well able to be someone her daughter could be proud of. 

37. She said that she currently receives the sum of one hundred and eleven dollars and thirty-three cents ($111.33) per month by way of child support from the father.  The mother also tearfully acknowledged that she had received, and accepted, an entitlement to a Commonwealth Government welfare parenting payment, saying at the same time, that it was something that she was not proud of. 

38. I am quite certain that the mother, in order to demonstrate to her child her true worth, is better off living in Brisbane and that her daughter will not be affected by such a move, particularly in circumstances where the current time care arrangements with the father and relevant siblings can be maintained. I find that the child will benefit from living in an environment where her mother, as her primary care giver, is prospering as a self-employed (occupation omitted). 

39. Section 65D of the Family Law Act 1975 (Cth), subject to section 61DA and section 65DAB, gives to the Court the power to make a parenting order as defined by section 64B of the Act. In deciding what parenting order should be made, pursuant to section 60CA, I must have regard to [X]’s best interests as my paramount and primary consideration. In that regard, I must consider the matters set out in section 60CC(2) of the Family Law Act, being the primary considerations, as well as the matters set out in section 60CC(3), being the additional considerations to be taken into account. 

40. There are two primary considerations, the first of which is the benefit to [X] of having a meaningful relationship with both her parents; and, secondly, it is the need to protect her from harm and being exposed to abuse, family violence or neglect.  Her physical and psychological wellbeing is paramount.  These considerations are of particular relevance and importance.  They are primary and consistent with the first two objects of Part VII of the Act as stated in section 60B, namely:

    That the best interests of children are met by ensuring that they have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent, consistent with their best interests, whilst protecting them from physical or psychological harm or from being subjected to, or exposed to, any neglect, family violence or other abuse.

1. The pathway required to be followed when undertaking a consideration of what is in the best interests of the child has been discussed by the High Court in MRR & GR (2010) 240 CLR 461. Those principles might generally be summarised as follows: one has to identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard.

2. Next, the Court will be informed by the objects expressed in section 60B(1) and the principles underlying those objects in section 60B(2) (and, where relevant, section 60B(3)), undertake a consideration of, and make findings about, each of the best interest considerations as set out in section 60CC, having regard to the respective proposals. 

3. Next, there ought to be a consideration of, and findings about, the section 60CC considerations and whether one or other of the proposals is preferable in that regard. 

4. Next, the Court has to determine when considering what is in the best interests of the child, the evidence which has been adduced on behalf of the parties, touching upon each of the relevant matters and, after such consideration, indicating which of those matters ought have greater significance attached to them. 

5. Next the Court has to determine whether or not the presumption of equal shared parental responsibility applies, having regard to any findings of abuse or family violence. 

6. Here, I am of the opinion that the presumption of equal shared parental responsibility ought to apply and continue.  The only issue in dispute between the parties is that relating to the child’s education and where the child will, therefore, necessarily live, and this judgment will determine that question. 

7. In so finding, I then have to determine whether equal shared time is in the best interests of the child, and, if not, whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable.  In relation to what is reasonably practicable, regard must be had to the factors identified in section 65DAA(5), some of which are necessarily addressed when considering the section 60CC considerations. 

8. The High Court in MRR & GR has emphasised that:

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time. 

   And section 65DAA(1)(b) and section 65DA(2)(d) require a practical assessment to be made of the feasibility of equal time or substantial and significant time, respectively.

9. I have already adverted to why I do not consider that a daily drive, week about, of more than forty (40) kilometres up and down winding mountain roads is feasible or reasonable, both in the context of actual driving time, as well as in the context of the child best living with the mother as her primary caregiver. 

10. In that regard, it is noted that the father’s initiating application filed in 2011 sought an order that the mother move to live within a forty (40) kilometre radius of the School F, an application which was rejected by her Honour Judge Spelleken. 

11. Referring to section 60CC(2)(a) of the Act, it is important for the Court to take into account orders required by the term “meaningful relationship”. In Sigley & Evor (2011) 44 FLR 439, the Court held that a meaningful relationship is one which is important, significant and valuable to a child, holding that the legislation promoted a meaningful relationship, not an optimal relationship.

12. The Full Court also confirmed that meaningful relationship was a legal term, not a psychological one; therefore, it was for the Court and not an expert to determine what constitutes a meaningful relationship. 

1. In this matter, the Court has not only had the benefit of a report from Ms R, but has also had the benefit of scrutinising each of the mother and father during cross examination.  Of most significance in the family report, in my view, are the records made by Ms R of her interaction with the child, [X].  I will make reference to various paragraphs of the report as follows. 

2. 51:  It was recorded that [X] indicated that she felt predominantly and equally happy when with each parent and that she indicated that there were no issues transitioning between them.  I make the point that when the child is recorded as indicating that there were no issues transitioning between them, she must be referring to the fact of the existing care arrangements.  It was recorded in that paragraph that [X] “understands the father and stepmother do not like the mother”.  She made a similar comment in relation to the mother not liking the father. 

3. 52:  [X] denies that she is angry or worried.  She wished that her parents could be together at least across the road and she did not want the Court to be involved any more.  In that regard, the child is expressing what most children from broken families would say. 

4. 53:  [X] rated her happiness being equally good when with either parent.  She rated the current parenting arrangement as 10 out of 10.  When asked by Ms R what [X] thought of spending equal nights with each parent, [X] was recorded as responding:

   That wouldn’t work because my school is in Town X and papa lives in Town Y.

   She thought that an equal parenting arrangement would be good if the parties lived close to each other, but that is not the case here. 

5. 54:  [X] said that she would not care if she and the mother moved house again, although she would care if the mother moved a long way away from the father’s house.  She indicated that it made no difference to her whether she lived in Suburb E or Town X.  In that regard, it has already been noted that the travel times between Town Y and Town X, as opposed to the travel times between Town Y and Suburb E, are almost the same. 

6. 61:  It was recorded that [X] appeared a typically happy and much loved little girl who had, unfortunately, long experienced the push and pull of a parenting dispute.  In that regard, I am not satisfied that that has been the case.  The child was very young during the course of the earlier Court proceedings in 2013 and 2014 and I doubt whether she could recall much in dispute at the time, particularly in circumstances where, throughout the whole of the time of such disputes, she spent substantial time with the father in his household. 

7. It was recorded by Ms R of [X]: 

   She is, however, cognisant of the mother’s anxiety and the father’s happiness and within that awareness, she expresses an alignment to the mother’s preferred outcome. 

   The reference by Ms R to the mother being anxious may very well have been related to the fact of the manipulation by the father on the morning of the interviews, as adverted to by me earlier, something about which Ms R made passing comment. 

8. 62:  Ms R recorded that:

   In my assessment, [X] would, indeed, thrive under a shared care arrangement.

   In my view, Ms R is there suggesting some ideal, based upon the child’s proposition that she would like each parent to live across the road from each other.  Ms R does not appear to have delved into the deeply held views of the mother as to the importance of her being a good role model, partly through her being self-sufficient through working as a (occupation omitted). 

9. Further on in that paragraph, Ms R said of the mother: 

   She appeared to be seething toward the father underneath her thinly veiled exterior.  This may have been more pronounced given the changeover dispute on the morning of these interviews.

   Ms R does refer to the changeover dispute, I doubt whether she was fully apprised of the extent of the effect that it had upon the mother, and she did not advert to the likely effect on the presentation of the mother in that regard. 

10. 66:  Ms R said:

    There is, possibly, a pattern of the mother relocating to avoid shared care.  There is also, quite probably, a pattern of the mother being flighty in her attitude.

    I reject each of those propositions as advanced by Ms R.  I find, having had the benefit of reading all of the evidence and examining, closely, the reactions of the mother, both during examination, cross‑examination, and in Court, generally, that she had no intention to avoid shared care; rather, I find that her attempts to find a place to live with her daughter have been based upon what she always considered was in the best interests of the child. 

11. I also reject the proposition advanced by Ms R that the mother was, quite probably, exhibiting a pattern of being flighty.  Since her move to Suburb E in 2012, the mother has only made one move, that being from Suburb E to Town X.  She is now seeking to relocate back to a place familiar to both her and her daughter, [X], where [X] has friends and where the mother has support.  In my view, the mother deserves a chance to develop her own life in a profession for which she is qualified and where the child is able to spend time with children with whom she is friendly, and in an environment known to her. 

12. The mother, in that regard, impressed me, also, in relation to her knowledge of School B and School D being catchment area schools for Suburb E residents, as well as having impressed me with her detailed knowledge of the proposed construction of a new high school at the site of the old School E Primary School;  a high school which she was enthusiastic about enrolling [X] into, due to the foreshadowed association between such school and the University. 

13. 67:  Ms R stated:

    I’m inclined to think [X] would now well-tolerate a change of residency if this was necessary for her wellbeing and, in any case, any mild short-term difficulty would have longer-term benefit. 

    I disagree with Ms R in that regard insofar as the suggestion is that she ought to live with the father.  I consider that the child has already demonstrated that she would well be able to manage a change of schooling from Region 1 Primary School back to the School A Primary School.  It is a change back to a school with which she is familiar, as earlier indicated.  Rather, the change from the Region 1 Primary School to the School C is a change from a known quantity, such as School A Primary School, to an unknown quantity. One cannot be assured that on top of a change of residence away from the person who has been her primary caregiver all her life, including a change to an unknown school, any such changes would not have extremely deleterious effects upon her. 

14. The child’s longer-term development, in my view, is best served by the child being most comfortable, both in relation to her residence and in relation to her schooling, and I consider that the proposal for her future advanced by the mother is preferable to her living in a somewhat isolated village atmosphere in Town Y. 

15. 68:  It was recorded:

    [X] does not like the idea of the mother moving a distance from the father, though if the mother did, she would want to remain with the mother.

    That, in my view, is really the nub of the situation here.  The child’s expressed intention is to remain with the mother.  That is her current arrangement, and that is her wish if the mother was to move further away from the father than she presently is, such as, say, a move to Sydney or Melbourne.  However, what the mother is proposing is nothing of the sort.  The mother proposes to move to a place equally distant to that from which she presently is situated away from the father. 

The need to protect [X] from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)(b))

1. There is no suggestion in this case that there is any reasonable likelihood of the child being exposed to any such abuse.  I accept that the father’s presentation is confronting to, and somewhat daunting to, the mother, but I do not accept that there is any physical abuse or violence issue arising therefrom. 

2. Section 60CC(3)(b).  I have already referred to the close relationship which the child has with each of the parents, as well as her siblings.  There is no problem evidenced in relation to any such relationship. 

The willingness and ability of each of [X]’s parents to facilitate and encourage a close and continuing relationship between her and the other parent.  The capacity of each of [X]’s parents and any other person to provide for her needs, including emotional and intellectual needs.  (Section 60CC(4) and (4)(a)).

1. There is no suggestion that either parent is seeking to prevent the other from having a continuing relationship with the other.  Each parent is respectively able to provide for the physical, emotional and intellectual needs of [X].  [X] is, on all accounts, an extremely happy, well‑balanced and delightful child.  In my view, it is probable that the existing arrangements have contributed to her being so. 

2. The living arrangements and domestic and cultural arrangements in each of the mother and father’s households are very different.  Rather than being engulfed into the father’s all-consuming world, I consider that it is a valuable experience for the child to remain in the current domestic arrangement with her mother whilst, at the same time, enjoying the benefits of a different cultural experience during the occasions that the child spends time with the father and her other siblings. 

3. I have already adverted as to the practical difficulties of the child living in a place such as Town 2 and travelling each second week on a daily basis to and from school, along winding roads, often in dangerous conditions.  On that basis, and on the basis that I do not consider that a shared equal parenting time is in the best interests of the child, I will not make any order for shared equal time. 

4. I consider that the child is best placed remaining with her mother and returning to live in Suburb E as proposed by the mother.  The mother impressed me as being someone who has the best interests of her child at heart, rather than being someone motivated by what is best for herself. 

5. I consider that [X] will continue to benefit from maintaining a close relationship with each parent in the time context in which she has so experienced the benefits of such a relationship over the last five years.  The move from Town X back to Suburb E is, in my view, a transition which will not effectively change the child’s appreciation of the value of the time she already spends, and has spent for a considerable period of time, with the father.  The mother has demonstrated that she wants that time to continue and I am satisfied that she will effect that accordingly. 

6. Had I made an order that the child remain enrolled at the Region 2 Primary School, then it is likely, in my view, that further litigation would arise upon the mother seeking to enrol [X] at either School B, School D or the new school to be built in School E, upon the child entering grade 7, which is two and a half years away. 

7. It is the case that the father has represented himself in these proceedings.  The mother has had to engage, at substantial cost, lawyers, including counsel, so as to best present her case.  I recall, in that regard, that the mother tearfully recorded, in a genuine way, the fact that she was unable to attend the recent funeral of her deceased brother about one month ago because she did not have the money to travel back to (country omitted).  It is best, in all of the circumstances, that litigation involving this matter comes to an end. 

Parental responsibility

1. I am satisfied that there should be equal parental responsibility in this matter, pursuant to the presumption under section 61DA(1) of the Act.  That, as I understand it, is the position of the parties, in any event.

2. For the reasons advanced by me earlier, I am not satisfied that equal shared time is viable or reasonably practicable in this matter.  To do so would deny, effectively, the child not living with her mother as the primary caregiver and that is not an order which I countenance. 

Substantial and significant time

1. It is the case that the current arrangement in terms of time has worked well for the last five years, and I make an order that such arrangement continue.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 26 June 2018