S and G - [2006] FMCAfam 532

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & G

[2006] FMCAfam 532

FAMILY LAW – Relocation – application brought by mother to relocate from M in rural Victoria to Brisbane – father lives in Melbourne – both parties have limited financial resources – best interests of the child – children to remain in Victoria.

Family Law Act 1975, ss.4, 60b, 60ca, 60cc, 60cg, 61da, 65daa

A & A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751
AMS v AMF (1999) 199 CLR 160; [1999] HCA 26
D & SV (2003) FLC 93-137; [2003] FamCA 280
KB & TC [2005] FamCA 458
Powell & Ptolemy (2005) FLC 93-239; [2005] FamCA 1032
U v U (2002) 211 CLR 238; [2002] HCA 36

Applicant:

BRS

Respondent:

JNG

File Number:

DGM1584 of 2002

Judgment of:

Riley FM

Hearing dates:

7 & 8 September 2006

Date of Last Submission:

8 September 2006

Delivered at:

Melbourne

Delivered on:

19 October 2006

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr Williams

Solicitors for the Respondent:

Robin Harrison & Associates

Counsel for the Independent Children’s Lawyer

Ms Brennan

Solicitors for the Independent Children’s Lawyer:

O'Halloran Davis

ORDERS

JNG (“the mother”) be restrained from relocating the residence of the children TLS born in 1995 and CJS born in 1999 beyond two hundred kilometres from the corner of Bourke and Elizabeth streets in the Central Business District of Melbourne.
All extant applications otherwise be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGM1584 of 2002

BRS

Applicant

And

JNG

Respondent

REASONS FOR JUDGMENT

Background

This is an application for parenting orders in respect of TLS born in 1995 and CJS born in 1999 (“the children”). TLS is 11 years old and CJS is seven years old. The parents of TLS and CJS married in June 1994 and separated on 8 November 2001. They were divorced on

6 May 2003. The father was born in 1969 and is now 37 years old. The mother was born in 1972 and is now 34 years old.
The father filed an application on 26 June 2006 seeking to restrain the mother from relocating the residence of the children to beyond

200 kilometres from the Melbourne GPO. The mother filed a response dated 10 July 2006 in which she sought orders permitting her to relocate to Brisbane. The mother proposed, in the event that she did move to Brisbane, that the children spend time with the father as follows:
a)on the last weekend of each month;
b)on nine nights in each of the Queensland mid-year school holidays;
c)for 10 nights in the January school holidays;
d)from Good Friday to Easter Monday; and
e)for four nights at Christmas time.
Orders had been made by consent on 28 February 2003 which essentially provided that:
a)each of the parents was to retain long term responsibility for the children;
b)the children were to reside with the wife;
c)the father was to exercise contact with the children:
i)every third weekend;
ii)for eight nights in each of the second and third school term holidays;
iii)for nine days in January;
iv)from Monday to Sunday in the first school term holidays; and
v)from Good Friday until Easter Monday each alternate year.
When the mother and father met, the mother had a child by a previous relationship, LEP born in 1990, and was pregnant with her second child, KLV born in 1992. The mother and father began living together in March 1992 and were married in June 1994. As noted above, TLS was born in 1995 and CJS in 1999.
LEP and KLV live with their mother. Their father has spent no time with them since July 1994. Since November 2001, he has paid the minimum amount of child support for them. The father in the present proceeding helped to raise and support LEP and KLV while he and the mother lived together. The consent orders of 28 February 2003 included orders that the father exercise contact with KLV and LEP at the same time as he exercised contact with the TLS and CJS, provided that LEP and the father wanted to spend time together and provided that LEP not be brought into contact with JDS unless LEP so wished. The reason for these provisos was not elucidated at the hearing and I draw no conclusions from them.
In 1994, the mother and father joined a Christian church called R. The father left that church in May 2001 as he did not accept some of its teachings. The mother and father separated in November 2001. The mother claims that the father made it difficult for the mother and the children to continue attending their church. However, the children still attend their R church and the father says that he has no objection to the children doing so.
The mother and father met in S, Victoria, and then lived in five different towns in New South Wales before moving to B in Victoria in January 2001. After the separation on 8 November 2001, the mother moved to S and then to M where she now lives. The father lives in K in the eastern suburbs of Melbourne.
Spending time with the father at present requires the children to travel for about one and a half hours each way in a car from M to K. The parents share the driving. Usually, the trip is split between the parents at the BR, which is about halfway. However, about four times a year, the father picks up the children in M and then goes on with them to S to see his extended family. M is on the way from K to S.
The mother says that on 14 June 2003, she started ‘courting’

RG who is also a member of the R church. They were married on 1 November 2003. RG is aged 42 and is qualified as a carpenter. He is presently unemployed and has not been looking for work, because he has been renovating the family home in M. There are no children of the marriage between the mother and RG. The father has not re-partnered and does not have other children.
Immediately after the separation of the mother and father, according to the mother’s comments to a psychologist, the father did not see the children for about five months because “it took him that long to get orders in place”. Since then, the father had regular contact with the children. There were two occasions where the mother did not make the children available for them to spend time with the father, both due, she says, to minor and transient ailments. The children are generally in good health.
On one of the occasions when the mother did not make the children available for a contact visit, the father asked for make up time. However, the mother refused on the basis that she had already made plans to go to her nephew’s naming ceremony on the weekend that the father had suggested for make-up time. The father did not suggest an alternative time and did not ask for make up time on the second occasion.
The father has two sisters and two brothers and the children have a number of school age cousins. The father does not speak to one of his brothers, but, otherwise, he says, everyone in his family gets on well. The mother disputes this, but having observed the father in the witness box, I accept his evidence. The father’s family mostly lives in S. The mother says that her family is not close and that relations have been strained in the past. She meets her family about twice a year for celebrations. Her parents visit her more often but generally during the day when the children are at school.
The father’s estranged brother has spent time with the children when they have been in the mother’s care. The father’s father and the father’s step mother have also spent time with the children while they have been in the mother’s care. The father’s father and the father’s step mother moved back to S from interstate about 12 months ago and have seen the children more regularly since then. The father’s mother died some time ago.
The mother and RG live with the children and their step-sisters in a three bedroom weatherboard home. The father lives in a small bungalow at the rear of a five bedroom brick house which is occupied by his friends, DO and AO. When the children stay with the father, they are able to sleep in the house, though the mother says that CJS often sleeps with his father in the bungalow.
The mother says that until the father moved to his present accommodation, the children sometimes did not want to spend time with him. However, now, she says, the children do not mind spending time with their father as there are other children to play with at his place.
The children have no relatives in Queensland. However, the mother has some friends living in Brisbane who the children refer to as aunty and uncle.
TLS is in grade 6 at the local primary school. Her two closest friends will be attending a different secondary school regardless of whether she remains in Victoria. TLS is presently corresponding with other children of her age in Brisbane, one of whom will be at the school it is proposed TLS attends. That child is also involved in the R church in Brisbane.
CJS is in grade 1 at the local primary school. The mother considers that he has not yet formed strong friendships. CJS is also corresponding with other children his age in Brisbane who live in the area in which it is proposed the children will live in Brisbane.
The father has not participated in the children’s school activities in the past. For example, he has not attended parent teacher interviews. However, he says and I accept, that he wishes to attend parent teacher interviews once the children are at secondary school, which, in TLS’s case, will be next year.
The children do not attend sporting or any other activities except that TLS is learning first aid with the St John’s Ambulance brigade.

She will be able to continue with this activity in Brisbane.
I would add, at this stage, that the father, who appeared in person at the hearing, presented as a decent, calm and thoughtful person. He did not appear to be opposing the relocation for reasons of control or spite. There was no suggestion of domestic violence.
The psychologist’s report indicates that the children are well adjusted and resilient. They appear to be a credit to both of their parents, though particularly their mother, who has been their primary carer.

The mother’s reasons for wishing to move

The authorities show that the relocating parent’s subjective reasons for wishing to relocate are virtually irrelevant, except in as much as they have a bearing on the best interests of the children. Nevertheless, the mother in her affidavit evidence put some emphasis on her reasons for wishing to relocate with the children to Brisbane. Accordingly, it is appropriate that those reasons be addressed by the court.
The mother says that she wishes to relocate to Brisbane partly for health reasons. She says that she suffers from asthma and says that she has been reassured that this will be relieved if she moves out of the

L. The L, she says, is very polluted because of its concentration of power stations. She says that her asthma would be further relieved in a warmer climate. The mother says she also suffers from carpal tunnel syndrome which is extremely painful in cold weather. She says that she has been reassured that the symptoms would be relieved in a warmer climate. The mother also says that her eldest child, LEP, has recently been diagnosed with psoriasis. The mother says that she has been informed by a doctor and a naturopath that the symptoms would be greatly reduced, and possibly disappear entirely, if she spent more time exposing the psoriasis patches to the sun.
There was no medical evidence in support of these claims. The advice that the mother says that she has received from doctors is clearly hearsay and expert opinion. Accordingly, it was not possible to ascertain whether the mother’s understanding of the advice she was given was either accurate or complete. There may, for example, be other treatments or approaches that would be equally successful, even if the mother and the children remained in M. Accordingly, there is little value in the mother’s evidence about health issues.
The mother says, secondly, that the children have enjoyed doing activities with their father of the sort that large cities can offer and which are not available in a small town like M. She gives as examples minigolf, large stores and shopping centres. The mother says that Brisbane offers many recreational activities such as Dreamworld and Movieworld that are either not available in Victoria or are over two hours drive from M. I accept that there are many advantages to a child living in a large city as compared to a small town such as M. Of course, many Victorians have holidays in the Brisbane area, partly for the purpose of visiting Dreamworld and Movieworld, but return to Victoria to live. Furthermore, as the father points out, the children could enjoy the benefit of a large city if they lived in Melbourne, closer to him.
The mother says, thirdly, that M is a rural area with a depressed employment market. She says that her present husband has worked in various casual, seasonal jobs in the past 15 years but now wishes to obtain more steady and secure employment given that he has a family to consider.
The mother’s present husband said that he had not really been looking for work in recent times because he was busy renovating the house. However, he did say that he believed that he could get a job in M if he knew with some certainty that the family would be staying there.
The mother, who has not worked outside the home for many years, said that she would like to obtain employment now that all of the children were back at school. Her previous employment was of a relatively unskilled nature. She says that there are few opportunities for work in M and the surrounding areas. She says that she would like to get a job perhaps as a cashier in a supermarket in Brisbane. There was no indication that either the mother or her present husband had any particular job waiting for them in Brisbane.
The mother also says that her oldest daughter wishes to become a child carer. LEP has already had offers of a permanent paid position of baby sitting from members of the Brisbane assembly of the R church. The mother points out that there are many child care facilities in Brisbane but they are limited in number in M and the L.
I accept that there are more job opportunities in a large city than in a small town such as M. However, I also note that RG does say that he expects to be able to find employment in M if he were to remain there. The mother did not give any evidence concerning the extent to which she and LEP had looked for work in M in their chosen fields and had been unable to find any. Accordingly, while the court can readily accept that there are more job opportunities in a large city than in a small town, the court is unable to find that the mother,

RG or LEP would be unable or unlikely to be able to secure suitable work in their chosen fields in M or the surrounding area.
The mother says, fourthly, that her second eldest daughter, KLV, who is aged 14, has said she wants to become a dolphin trainer. The mother says that this type of study cannot be carried out in Victoria but can be carried out at several institutions on the Gold Coast. However, in oral evidence, the mother indicated that KLV had changed her mind about wishing to become a dolphin trainer. In the circumstances, KLV’s previous wishes in this regard are moot.
CJS, aged seven, has said that he wants to learn to surf. The mother has pointed out that there are no surf beaches within two hours drive of M. The mother has told CJS that if they relocate, he will be allowed to learn to surf. The mother says that there are people in the Brisbane assembly of the R church who are surfers and who are willing to teach children to surf. There was no indication that CJS has ever attempted surfing or that he is a competent swimmer. It may be that if CJS attempted surfing, he would find that it was not an activity into which he wished to put the necessary time and effort. Given that CJS is only seven years old, it is not appropriate to regard his present wish to learn to surf as a significant factor.
The mother says, fifthly, that the family would benefit from a good public transport system that would enable the children to attend schools and TAFEs or universities and reach places of employment and sporting or other entertainments. I accept that large cities have much better public transport facilities than small towns and more access to educational institutions, employment and entertainment.
The mother says, sixthly, that a number of family friends have moved from Port Macquarie to Brisbane. The mother says in her affidavit:
“the children have a strong relationship with B and D, and P in the nursing home getting really sick. The children contact these ‘relations’ on a regular basis and have a stronger relationship with them than with their grandparents.”
The mother also says that family friends have moved from M and MW to Brisbane. I accept that people who the children have an existing relationship with now live in Brisbane. However, I would also note that it is of obvious benefit to the children that they maintain and strengthen their relationships with members of their own family.
The mother says, seventhly, that the Brisbane assembly of the R is a vibrant group of Christians. The mother says it has weekly activities for children which the mother believes will help prevent the children taking up drugs and alcohol which are highly prevalent and available in M. The church offers many outdoor, recreational activities as well as movie nights, sleep overs and formal and informal family activities.
The mother says that the R church in MW, which she currently attends, is too small and is attended by older people. She says that it does not provide the support structure that would be available in Brisbane. The father says that the headquarters of the R church is in BH in the eastern suburbs of Melbourne. He says that it has a much larger congregation than the church in MW. The mother says that the church in Melbourne is too big and, again, it is attended by older people. She also says that the church in Brisbane has areas for the children to run around in during breaks in meetings, which can last for several hours, whereas the church in Melbourne does not have a similar area.
I accept that the R church in Brisbane has a congregation and facilities that would make it more congenial for a young family than the church in Melbourne or in MW.

The significance of the mother’s reasons for wishing to move

The High Court has made it clear that a parent wishing to relocate with his or her child does not need to demonstrate “… ‘compelling reasons’ to the contrary of the proposition that the welfare of the child would be better promoted by him continuing to reside” where he is: AMS v AMF (1999) 199 CLR 160; [1999] HCA 26 at [47] per Gleeson CJ, McHugh and Gummow JJ. Indeed, the subjective reasons of the parent wishing to move for “the proposed relocation should only feature in the trial and in the judgment to the extent of their impact, if any, upon the child's best interests”: A & A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751 per Nicholson CJ, Ellis and Coleman JJ at [88]. At paragraph 108, the Full Court of the Family Court explained that point in more detail saying, at page 87,552:
* As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue.
…
* The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

The last mentioned principle was more recently reiterated by Gummow and Callinan JJ (with whom Gleeson CJ agreed) in U v U (2002) 211 CLR 238; [2002] HCA 36 at [89] where their Honours said:
…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 a movement of a parent.
Nevertheless, where the parent wishing to relocate is unchallenged as the parent with whom the children are to live, it is necessary for the court to evaluate “all options to determine if the welfare of the children could fit in with the mother’s right to live where she pleased” (emphasis added): D & SV (2003) FLC 93-137 at 78,290; Powell & Ptolemy (2005) FLC 93-239 at 79,942. That is to say, it is necessary for the court to ascertain whether, and if so how, the best interests of the children might be accommodated consistently with the proposed relocation.

Approach to relocation cases generally

The relevant principles in relocation cases were explained by Kirby J in the High Court in AMS v AIF as follows:
142 First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a “careful and delicate analysis”, which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approachhttp://web2.westlaw.com/result/result.aspx?cite=199+CLR+160&cxt=DC&fcl=False&rp=%2fFind%2fdefault.wl&ss=CNT&docsample=False&cnt=DOC&n=1&rlt=CLID_FQRLT363923118&service=Find&ReferenceSDU=214&ReferencePositionType=T&ReferencePosition=FN%3BFFN%2E140&AP=&fn=_top&rs=WLW6.07&mt=WestlawAustralia&vr=2.0&sv=Split&sp=famcourt-2004.
143 Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child’s place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the “welfare” (or “best interests”) of the child should be the paramount consideration. It may provide a list of considerations or “principles” to be applied in the exercise of the court’s powers. However, the “paramount” consideration is not the same as the “sole” or “only” consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
144 Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
146 Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women’s equality or the “feminisation of poverty” resulting from the effective immobiLEPtion of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
147 Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.
148 Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child’s access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
149 Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court’s discretion.
The Full Court of the Family Court in A & A: Relocation Approach provided a summary of the proper approach in relocation cases at [108]. That approach is as follows:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child's relocation to demonstrate "compelling reasons" for the relocation of a child's residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) - (l) of that subsection.
·The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
1. A court will identify the relevant competing proposals;
2. For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
·       As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·       The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·       Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
·       In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
·       In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
·       In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
·       In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
·       In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.
Subsequently, a different constituted Full Court of the Family Court (Bryant CJ, May and Boland JJ) in KB v TC [2005] FamCA 458 considered the High Court’s decision in U v U and said at paragraphs 71 and 72 that:
In U v U the High Court reaffirmed that the “overarching issue” (at 260) is to ensure any parenting order is in the best interests of the particular child. We accept that whilst in some cases each s 68F(2) factor may be relevant in determining what is in the best interests of a child, in other cases a more limited examination of s 68F(2) factors may be appropriate as being the only relevant (our emphasis) factors to the particular issue to be determined.
We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
Additionally, since A v A was decided, and for that matter, since KB v TC was decided, there have been significant changes to the parenting provisions of the Family Law Act 1975 (“FLA”). The relevant provisions of the FLA are set out below.

Legislative provisions

Objects and principles

Part VII of the Family Law Act 1975 (“the FLA”) deals with children. Section 60b of the FLA provides that the objects and underlying principles of Part VII of the FLA are as follows (omitting for present purposes sub-s.3 which deals with Aboriginal and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Best interests of the child

Section 60ca of the FLA provides that:
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.
Section 60cc of the FLA relevantly provides that:
1.Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
2.The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
3.Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)          each of the child’s parents; and
(ii)     other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)          either of his or her parents; or
(ii)         any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)          each of the child’s parents; and
(ii)     any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child …
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)          the order is a final order; or
(ii)     the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Family violence

Section 60cg of the FLA provides that:
1.In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a)is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
2.For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.”
Family violence is not an issue in the present matter.

Equal shared parental responsibility

Section 61da of the FLA provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In the present case, the parents since separation have had equal shared parental responsibility for the children, to use the current terminology. There is no suggestion there should be any change in that arrangement and in my view it should continue.

Equal or substantial and significant time with each parent

Section 65daa of the FLA requires the court to consider the children spending equal time, or a substantial and significant time, with each parent, if the parents are to have equal joint parental responsibility.

It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)          the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In the present case, the father does not seek equal time with the children. He says that, given the distance between M and K, he considers the existing arrangement to be appropriate. Counsel for the mother sought to make something of the fact that the father did not now, and did not in the past, press to have more time with the children. There was perhaps an implied suggestion that a parent who did not seek large amounts of time with the children had no right to seek to prevent the other parent relocating with the children to another state.
However, any such suggestion misunderstands the nature of the inquiry. The object of the present proceeding is not to reward a “deserving parent” or punish an “undeserving parent” for their past or possible future actions. It is to achieve an outcome that gives primacy to the benefit to the children in having a meaningful relationship with both of their parents, while giving proper weight to all of the other relevant considerations stipulated by the legislation. Depending on the circumstances, that may mean that it is appropriate to enable children to spend a great deal of time with a parent who has shown little or no interest in them in the past.

The proposals of each of the parents

The father’s proposal was that the mother be restrained from relocating the residence of TLS and CJS beyond 200kms from the Melbourne GPO. The father wanted the existing arrangements for the children to spend time with him to continue. The father submitted that many of the benefits that the mother had identified in moving to Brisbane could be satisfied by the children moving to Melbourne. By way of example, Melbourne has a well developed public transport system, many educational institutions at all levels, a broad range of job opportunities, entertainment and sporting facilities as well as the headquarters of the R Centre in B, and less pollution than the L.
The mother’s proposal was that she be permitted to relocate with the children to Brisbane. In her response filed on 10 July 2006, the mother proposed that the children spend time with their father as follows:
a)from about 5.00pm or 6.00pm on the Friday of the last weekend of each month until about 8.00 or 10.00pm on the last Sunday of each month;
b)for nine consecutive nights in each of the Queensland school term holidays;
c)for ten consecutive nights in the January Queensland school holidays;
d)from about 5.00 or 6.00pm on Good Friday until about 8.00 or 10.00pm on Easter Monday in alternate years; and
e)for four consecutive nights starting on Christmas Eve in alternate years and by telephone at various times.
The mother also proposed in her response filed on 10 July 2006 that she would pay the cost of the children’s airfares to enable the children to spend time with their father. In an affidavit sworn by RG apparently on 7 September 2006 but filed on 6 September 2006, RG said that he wished to sell his house to fund the children’s air travel so that they could spend time with the father. RG explained in oral evidence that the house that he had been renovating was registered in his sole name. He said that it was on the market and he expected it to sell for about $90,000. He said that the property was subject to a mortgage but that he believed his equity in the property was about $75,000. He said that he was prepared to set aside $60,000 to be used over time for the cost of the children’s travel by air to visit their father in Melbourne.
RG has had a number of seasonal and casual jobs in the past but is presently not in employment. The mother is not presently in employment and hopes to obtain work in Brisbane as a supermarket check out operator. There was no indication that RG or the mother have any substantial funds other than the amount that RG expects to receive upon the sale of his property.
In an affidavit sworn by the mother apparently on 7 September 2006 but filed on 6 September 2006, the mother stated that she would prefer that the children travel by Jet Star flights leaving Brisbane at 5.25pm on Fridays and returning from Melbourne at 9.30pm on Sundays.

The mother noted in her affidavit that Jet Star does not allow the travel of unaccompanied minors so the children would need to travel with either RG or the mother or another nominated supervisor.
The mother said in her affidavit that if Jet Star tickets were not available, her second choice would be for her children to travel with Virgin Blue. Her preferred departure times were 6.25pm on a Friday and 5.15pm on a Sunday. The mother noted that Virgin Blue permits a maximum of eight unaccompanied minors on each of their flights subject to various procedures being followed in relation to unaccompanied minors.
The mother said in her affidavit sworn on 7 September 2006 that Jet Star has tickets from Brisbane to Melbourne at $99.00 She calculated that for the two children and one accompanying adult the cost per visit would be $594.00, being three tickets each way and, with thirteen visits per year, the total cost would be $7,722.00 per annum Alternatively, with Virgin Blue, the mother calculated that as only TLS and CJS would need to travel, and as the tickets cost $180.00 each, the cost for each visit would be $360.00 and as there would be thirteen visits per year, there would be a total cost of $9,360.00 per annum. The mother’s calculation of $360.00 per visit does not take account of the return journey. It appears that the actual cost per visit with Virgin Blue would be $720.00 which multiplied by thirteen equals the total of $9,360.00 that the mother calculated.
The mother proposed that she and RG would rent a four to five bedroom house in or around the suburb of I in Brisbane. She expected that the children would each have their own bedroom. She said that currently the family is living in a two bedroom home that has been extended by adding a third bedroom. The mother said that she had ascertained from the internet that there was a steady supply of four to five bedroom homes available for rental in the I area. She gave no evidence about whether she would be able to afford the rental on such a property.
The mother proposed that the children would attend local government schools. The mother said that TLS is an advanced student for her age and she believes that the Queensland education system which compacts four years into three years of study will test and educate TLS to her ability. The mother said that the school that was proposed that TLS would attend offered opportunities for further advancement through extra curricular activities but that TLS had indicated that she did not wish to be in an advanced class as this can lead to bullying.

The mother said in her affidavit that if CJS felt that the Queensland education system was too challenging for him, then he could repeat a year and still be amongst other children of his age with no detriment to his education.
The mother said that I is about 20kms from the centre of Brisbane in an urban area with substantial light industry. She said it is between Brisbane and Ipswich and there is a train station in a neighbouring suburb, open parklands, sporting facilities, a TAFE, walking trails and it is within one hour of surfing beaches.
At the hearing, the mother amended her proposal so that the children would travel to Melbourne less frequently but spend more time with their father when they did. The amended proposal was that the children would come to Melbourne once a term for four nights on a weekend to be agreed by the parties or in default of agreement on the first weekend of each term when there was either a curriculum day or a long weekend. The expectation was that the children in this event would miss only one day of school per term by reason of spending time with their father. Otherwise, the proposal ultimately put by the mother was that the children would spend nine consecutive nights with the father in the second and third term school holidays, ten consecutive nights in the long summer school holidays, five consecutive nights in the Queensland first term school holidays and from the first Monday after school finishes for the year until the evening of Boxing Day.
The proposal put by the mother was further amended during the hearing to provide for the time to be spent by the children with the father to be spent with him in Brisbane for the four nights in the second and fourth school terms. Otherwise, the children were to spend time with their father in Melbourne. The mother proposed, following a question from the court, that she would pay for the father’s travel to Brisbane for the purposes of the children spending time with him on two occasions each year.
The independent children’s lawyer supported the mother’s proposal.
When asked by the court if the mother would consider moving to Melbourne if the relocation to Brisbane did not go ahead, the mother said:
“No, I really wouldn’t see it as - like it’s just not me. I mean, I know it sounds funny, but like I’ve been - I’ve lived in Melbourne like twice - two separate, major occasions and not really enjoyed either one.”
The mother went on to say that she had lived in B with the father in the present proceeding and in MP with the father of LEP and KLV. RG gave oral evidence that he would regard Melbourne as a possibility if the proposed move to Brisbane did not eventuate but he would want to discuss it with his family before making a decision. The father said that he would consider moving to Brisbane if the children moved there.

The time spent travelling

Under the present arrangement the children spend about one and half hours travelling from M to K and one and a half hours travelling back again each third weekend and on school holidays. The round trip is thus about three hours. If the children move to Brisbane, it was common ground that the time that they spend travelling would consist of about half an hour to get from their home in I to the airport, about one hour at the airport before the flight leaves, about two hours of flying time, about half an hour from the time the flight lands until they leave the airport, and about one hour to get from the airport to the father’s home in K. This makes a total of about five hours door to door on each leg of the journey or a ten hour round trip.
The mother’s initial proposal that the children travel back to Brisbane on a Sunday night on the 9.30pm flight was overtaken at the hearing by the amended proposal involving four day blocks. It would have meant that the children would have touched down in Brisbane at about 11.30pm and probably not reached home until about 12.30am on a school day. The mother said that she suggested the 9.30pm flight because the only other flight offered by Jet Star on a Sunday was in the morning and she wanted to maximise the time that the children spent with their father.
To my mind, the proposal by the mother that the children fly to Brisbane at 9.30 pm on the Sunday and reach home at 12.30am on a school day was misconceived. It suggests that the mother was determined to move to Brisbane regardless of the best interests of her children. As noted, however, this proposal was modified at the hearing and replaced with the idea of once a term trips of four days, with two of those visits to be undertaken by the father.
If the children do relocate, the father was agreeable to travelling to Brisbane twice per year to spend time with the children on the basis that the mother paid for his airfares. I would note at this point that the father is a self employed lawnmower man with a modest income.
The mother’s counsel suggested at the hearing that there would be other flight times with Jet Star on a Tuesday so that the 9.30pm departure time would not be an issue under the new proposal.

No evidence was provided of what those flight times might be. However, I accept for present purposes that there may be departures at a more reasonable hour on Tuesdays and that late departures during school holidays could be managed reasonably comfortably by the children.

The cost of travel

The mother proposed in her affidavit evidence that the costs of the children travelling to Melbourne would be paid for by her from the proceeds of the sale of RG’s house. She said that $60,000 of the proceeds of sale would be invested and spent over the years on the children’s airfares. At the hearing, the mother and RG agreed that they would pay for the father to travel by air to Brisbane on two occasions each year to enable the children to spend time with him in Brisbane. They indicated that the father should bear other costs associated with his trip to Brisbane such as accommodation for himself and the children and car hire. In oral evidence, both the mother and RG said they would be agreeable to the $60,000 being placed in a trust account with the mother and the father being joint signatories of the account.
However, in closing addresses, the mother’s counsel submitted that the court should not require the mother, and RG, to be bound in that way. Additionally, the minute of proposed orders that the mother’s counsel submitted to the court at the conclusion of the hearing, perhaps through inadvertence, did not provide for the mother to pay for all of the children’s travel. Rather the minute of proposed orders only provided for the mother to pay for the children’s airfares for the one trip to Melbourne in each of the first and third terms of the school year and for the cost of the father’s airfares to and from Brisbane in each of the second and fourth school terms, to a maximum of the amount paid by the mother for the children to travel to Melbourne in the previous term. In other words, the minute of proposed orders proffered by the mother’s counsel did not include a general order that all of the children’s flights to Melbourne would be paid for by the mother.
The minute of proposed orders handed up by applicant’s counsel reads as follows:
1.That the Wife be permitted to relocate to Brisbane with the children TLS born in 1995 and CJS born in 1999.
2.That upon the Wife relocating to Brisbane with the children, paragraphs 4, 11 and 12 of the Orders made 28 February 2003 be discharged.
3.That the Husband spend time with the children as follows:
(a)School Term Time with the Children (Contact)
(i)     The children spend time with the Applicant on four school term occasions of four nights duration as agreed by the parties or in default of agreement on the first weekend of each term when there is either a curriculum date or long weekends.
(ii)     Such time as set out in paragraph (i) hereof commence on Friday upon the children arriving in Melbourne or upon the Applicant collecting the children after school from the Respondent in Brisbane.
(iii)   The school term contact occur on the first and third occasions each year by the Respondent transporting the children at the Respondent’s cost to and from Melbourne.
(iv)    The school term contact occur on the second and fourth occasions each year by the Respondent paying to the Applicant thirty days prior to his departure the same amount expended on the previous transportation cost on the last contact.
(v)     In the event that the Applicant fails to attend to spend time with the children in Queensland then the Applicant shall refund immediately to the Respondent the monies advanced pursuant to paragraph (iv) hereof.
(vi)    The Respondent be permitted to draw down the costs set out herein from the investment account referred to in these orders.
(b)     For nine consecutive nights in each of the Queensland second and third term school holidays, commencing as close to 5:30pm, as flight schedules allow, on Friday the last day of the school term until as close to 9:30pm as flight schedules allow, on the date the time to be spent concludes.
(c) For ten consecutive nights in the Queensland long summer school holidays, commencing as close to 5:30pm as flight schedules allow on the third Thursday until as close to 9:30pm as flight schedules allow, on the date the time to be spent concludes.
(d)     For five consecutive nights in the Queensland first term school holidays, commencing as close to 5:30pm as the flight schedules allow, and concluding as close to 9:30pm as the flight schedules allow, on the date the time to be spent concludes, not including Good Friday through to Easter.
(e) Commencing as close to 5:30 pm as the flight schedules allow, on the first Monday after school finishes for the Queensland school year until as close to 9:30 pm as the flight schedules allow, Boxing Day each year.
(f)     In the event that some major event precludes time to be spent on a specified weekend, the Wife will provide at least fourteen days notice. The parties will arrange for a ‘make-up’ period of time on a date acceptable to the Husband.
(g)     At such other times as may be agreed between the parties from time to time.
4.That the husband communicate with the children:
(a)     By telephone on each of the children’s birthdays, the Husband’s birthday and Father’s Day between 7:00pm and 8:00pm; and
(b)     By either telephone or video link via the internet, between 7:00pm and 8:00pm each Tuesday night.
5.That the husband collect the children from the Melbourne Tullamarine or Avalon Airport at the commencement of his time spent with the children and return the children to the appropriate airport at the conclusion of his time spent with the children.
6.That in the event the children are in Victoria at any time when the children are to be in the Husband’s care, changeover is to occur at a location to be agreed upon by the parties.
7.That in the event the Husband is in Queensland at any time when the children are to be in his care pursuant to these orders, changeover is to occur at a location to be agreed upon by the parties.
8.That in the event the Husband is in Queensland at any time when the children are not to be in this care pursuant to these orders, the Husband be permitted to spend time with the children with such times to be arranged between the parties.
9That the Wife will inform the Husband of the times the flights arrive at the airport and which airport will be used as the changeover airport as soon as possible.
10That in the event of the Husband having to arrange a different ticket, that the Husband inform the Wife of the time the flight arrives at the airport, and which airline the children will be travelling on, as soon as possible.
11.Pursuant to s.65da(2) and s.62b, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

With the minute of proposed orders handed up by the mother’s counsel, there was a separate sheet headed ‘Travel Costs’.

That document contains five other orders which the applicant’s counsel apparently provided for the court’s assistance but which he submitted the court should not make. The document headed ‘Travel Costs’ reads as follows:
1. That upon the sale and settlement of the property in which the Respondent presently resides the Respondent shall do all acts and things necessary to invest the sum of $60,000.00 for the purposes of securing the payment of airfares and necessary accommodation arising from these orders.
2. That the Respondent be at liberty to invest the sum referred to in paragraph 1 hereof in Bank shares listed on the Australian Stock Market provided that there is sufficient cash retained to meet six months expenses at any one time.
3. That the Respondent shall provide the Applicant with copies of documents evidencing such investment at the commencement of the investment and annually thereafter.
4. That the Respondent shall be and is hereby restrained from disposing of the investment sum contrary to these orders without the written consent of the Applicant or court order.
5. That the Respondent shall draw down the investment periodically for the sole purpose of facilitating the costs of the children travelling to Melbourne to spend time with the Applicant in Victoria and a contribution not exceeding that sum when the Applicant travels to Queensland for the purposes of spending time with the children pursuant to these orders.
The oral submission of the mother’s counsel in relation to these matters was as follows:
MR WILLIAMS: Your Honour, our position is this: that your Honour ought not to make any order in respect to my client because of her modest financial circumstances that she lock up the $60,000 that was proposed by her in her affidavit.
That's why the proposal in that regard is on a separate sheet of paper and in our submission (vi) should be deleted from the orders that your Honour makes and your Honour ought to disregard the second page which is headed Travel Costs. We say that for these reasons: first is that our client has come to this court, as opposed to the Cook case, in an appropriate manner. She hasn't attempted to abscond. She's been a bona fide caring mother who's looked after these children and has made the appropriate application to the court at the appropriate time and has not pre-empted in any way the court's decision in relation to that.
Her bona fides in the past in relation to compliance with orders is unassailable. Her position is that she ought not be put at a financial penalty compared to other persons who come to the court and make a similar application. Her proposed offer in relation to the payment of these moneys ought to be seen as further confirmation in the eyes of the court of her bona fides and her genuineness, but the court does not have to enforce upon her that compliance because there is nothing to suggest in this case that she will not comply and pay for the costs as set out in the orders as they stand in the proposal that I put to your Honour.
…
HER HONOUR: What was discussed in evidence was the possibility of putting the funds into, I presume, an interest bearing account that would have joint signatories. Your client and her husband both agreed to that.
MR WILLIAMS: Yes, your Honour. That is something that is said by a person in the witness box who is totally naive in relation to financial matters and the way in which that could mechanically work and the outcome in terms of a financial penalty for her as a result of doing that. So what I have done with her further instructions is prepared something which if she's going to do such an onerous thing, which I underline is something in my submission ought not to happen in this case because it is extraordinarily rare in a relocation case that this happen.
…
We say that whilst it's a genuine offer by my client in an affidavit that was prepared by her to show her bona fides, she shouldn't be punished for showing those bona fides when she is of very significant - sorry, very slight financial means. There is always the issue of liberty to apply. For instance, if she's ordered to pay for the flights as we propose in the body of the orders and pay for the husband's flights and be provided an allowance for accommodation which is included in the package that we have put to the court - he's at liberty to come back to the court and then seek by way of default that some appropriate steps should be taken. But there's no history of my client not acting in good faith and I don't believe in my submission that it would be fair and equitable for the court to impose that upon her. But if you're against me, then I have formulated with my client what we submit would be a fair way of doing it.
HER HONOUR: In paragraph 3(a)(vi) you refer to the investment account referred to in these orders.
MR WILLIAMS: Which is the part that was called Travel Costs which is the separate - - -
HER HONOUR: That's only [in] the “Travel Costs”.
MR WILLIAMS: That's so.
HER HONOUR: You're suggesting that one option would be to remove paragraph 3(a)(vi) - - -
MR WILLIAMS: In the event that you don't order the lump sum quarantined of $60,000, in the event that you don't order that, then (vi) would disappear from our proposed minutes. All the other minutes would stay there, but (vi) would disappear.
A major difficulty with the proposals relating to the mother funding the costs of travel is that the fund which she intends to use is contingent upon RG’s property being sold for about $90,000 and RG making about $60,000 of the proceeds available to the mother for the purposes of paying for air fares. RG said in oral evidence that he considers the property to be his and the mother’s by reason of their marriage. Whether the mother might have an enforceable right in relation to the property, and to what extent, is unknown at this stage. At present, the mother has no recognised right to the proceeds of sale. Any orders that the court might make binding the mother to pay for the airfares will be to little avail if she does not have the requisite funds at her disposal.
The mother’s counsel urged the court to accept that the mother was bona fide in her willingness to fund the cost of the travel to and from Brisbane by the children and the father. The fact that the mother’s counsel provided to the court orders that only required the mother to fund four trips per year may be attributed to inadvertence. However, the fact that the mother’s counsel urged the court not to make the orders set out in paragraph 3(a)(vi) of the minute or any of the orders set out in the document headed ‘Travel Costs’, leaves the court with grave doubts about the genuineness of the mother’s stated intention to fund the travel.
There are various mechanisms to ensure that the travel costs would be paid by the mother into the future. For example, RG could have granted a charge over the property in favour of the mother and the father and RG could have executed a deed pursuant to which he bound himself to put the proceeds of the sale of his house into a trust account with the mother and father as signatories. In the absence of such documents, and in view of the submissions by the mother’s counsel asking the court not to make the orders in the document headed ‘Travel Costs’, the court can only conclude that there is a very substantial risk that the mother would not pay the travel costs if the relocation goes ahead.
In any event, even if the mother did have a genuine present intention to fund the cost of travel, and even if RG remained willing over the next ten years or thereabouts to have his money spent in that way, there would remain a question whether such expenditure would be in the best interests of the children. The mother and RG indicated that they did not expect to be able to buy a house in Brisbane in the short term but hoped to do so in the long term. Neither of them actually has a firm offer of a job in Brisbane but they are both hopeful of obtaining employment if and when they arrive in Brisbane. Neither the mother nor RG appears to have a high earning potential. There was no evidence that they have access to any substantial funds other than the proceeds of RG’s house. On the contrary, the mother’s counsel referred to the mother’s “modest financial circumstances” and her “very slight financial means”. While the mother and RG can of course spend their money as they see fit, it is difficult to see how it is in the best interests of the children to spend $60,000 on airfares when there is insufficient money at present to buy a house to accommodate them, and where the mother is generally in modest financial circumstances.
The mother’s counsel relied on the father’s concession that he had enough money to pay for the attendance at court of the writer of the family report to argue that the father was of substantial means.

As discussed below, the evidence does not indicate that the father would be in a position to pay for the airfares. There is obviously a big difference between the hundreds of dollars required to pay for a witness on a one off basis, and the many thousands of dollars required to fund the air travel each year.

The psychologist’s report

A family report was prepared by Dr Todd Jacobson, a psychologist.

In relation to the observed interaction between CJS, TLS and the father, the psychologist reported that:
59.    BRS was appropriate at all times while interacting with the children. For example, he was good-natured and softly spoken with them. He was also good-natured with the children. BRS was attentive to and involved with the children. The writer overheard BRS ask the children appropriate questions about themselves such as about their recent activities. He also easily divided his attention between the children and he patiently assisted them with their play activities.
60.    The writer observed an obvious relationship between each child and his/her father. For example, the children sought out their father for attention and praise. They also disclosed things about themselves including about their recent activities suggesting that they felt comfortable with the father. The children seemed to enjoy interacting with their father as evinced by their animated behaviour and by their smiles. The writer noticed that the threesome cooperated in their play activities. The writer also noticed that both children were physically affectionate with their father.
61.    As the children were well behaved, BRS had no need to set limits on them.
62.    The writer neither overheard nor observed anything during the observation session that caused him concern.
In relation to the interaction between CJS, TLS, KLV, LEP, RG and the mother, the psychologist reported that:
63.    RG and JNG were appropriate at all times while interacting with the children. For example, they were both respectful of the children as evinced by engaging in separate activities of the children’s choice. Both were good-natured, if not playful with the children. They also interacted with the children at the children’s respective level. RG and JNG seemed to take a keen interest in the children’s talk and play.
64.    The writer observed an obvious relationship between each child and RG and JNG. For example, the children oriented their talk and play towards their mother and RG. The writer also overheard extensive conversation between the children, RG and JNG the nature of which suggested a good relationship. The children, CJS and TLS in particular, seemed to enjoy interacting with their mother and RG as evinced by their animated behaviour and by their smiles. CJS and RG, in particular, impressed the writer as having a playful relationship.
65.    As the children were well behaved, neither RG nor JNG had need to set limits on the children.
66.    The writer neither overheard nor observed anything during the observation session that caused him concern.
Under the heading ‘Opinion’, the psychologist said the following:
70.    It is the writer’s opinion that neither CJS nor TLS are old enough or mature enough to determine their own best interests regarding a parenting arrangement. This notwithstanding, it is the writer’s opinion that it is important to ascertain a child’s views in these regards. The writer notes that both children expressed a view to live in Queensland with their mother. TLS’s expressed reasons for wanting to live with her mother in Queensland include the warmer weather, living closer to the beach and being able to be involved in more activities at church. CJS was clear he wanted to move to Queensland to live with his mother. However, he impressed the writer as reluctant to clarify his reasons. The writer formed the impression from speaking with each child that he/she has at least a modicum of appreciation that they will leave friends time (sic) and that the structure of the time they spend with their father will change if they move to Queensland. With regard spending time with their father, CJS said that he would not like to spend time with his father in the future. He couched his reasons in that his father “overreacts” when he is naughty. The writer notes that CJS’s statement surprised him as both BRS and JNG described a good relationship between CJS and his father; the writer reiterates that he observed an obvious relationship between CJS and BRS. For these reasons the writer is inclined to place little weight on CJS’s views regarding the time he would like to spend with his father in the future. TLS, on the other hand, stated she would like to spend time with her father once each month. She acknowledged that she might miss her father but which (sic), nevertheless, like to move with her mother to Queensland.
71.    As a psychologist, it is the writer’s opinion that anyone, including parents, should have the right to live any place of their choosing, and for any reason, as long as appropriate arrangements are made for the children to maintain a relationship with their non-relocating parent.
72.    The writer notes he has no reason to conclude that the children are at risk in any way in JNG’s care. Therefore, the writer can see no reason why the children should be prevented from continuing to live with their mother.
73.    The writer notes that BRS stated he considers JNG’s parenting proposal to be “good”. Both parties appear to concur that JNG’s proposal has approximately the same number of days involvement with their father as they currently enjoy. Furthermore, while there appears to be some variation in the proposal for the time the children spend with their father as compared to the current arrangement, the variation is minimal in the writer’s estimation. For example, it appears that the children will continue to spend time with their father for one weekend each month and substantial involvement with him during school holiday periods. The proposal does not impress the writer as a significant departure from the current arrangement. Therefore, the writer can see no way in which JNG’s parenting proposal, if put into action, would do anything other than maintain and develop the children’s relationship with their father.
74.    BRS expressed several concerns about the children living with their mother to Queensland (sic) including the amount of travel they would be required to undertake to maintain a relationship with him. He also said that he considers it inappropriate for children to fly as often as CJS and TLS might have to fly. However, this concern perplexes the writer as he (the writer) has information to suggest that the children are required to undertake substantial travel to participate in the current parenting arrangement. BRS also said that he considers the expense of airfares unnecessary. However, as the writer has information to suggest that the financial burden will be with JNG, this issue vis-â-vis BRS is moot.
The psychologist concluded that “he can see no reason why CJS and TLS should be prevented from living with their mother” in Queensland. In reaching that conclusion, the psychologist relied on a view of the facts in relation to two matters which the court does not share. The psychologist said in paragraph 74 of his report that the financial burden of the travel will be with the mother and so the cost issue vis-à-vis the father was moot. However, as explained above, there are substantial reasons to doubt that the mother will actually bear the financial burden of the travel costs for the next ten years or thereabouts.
Additionally, the psychologist was dismissive of the time the children would spend travelling on the basis that they already spent a substantial amount of time travelling to spend time with their father. When it was pointed out to the psychologist during his oral evidence that the children presently spend one and half hours travelling each way to spend time with their father and if they moved to Brisbane they would spend about five hours each way travelling to spend time with their father, the psychologist seemed genuinely surprised. However, in his verbal evidence, he maintained that he would support the mother’s amended proposal.
It is of concern to the court that the psychologist’s report in this case was based on his express opinion that:
“anyone, including parents should have the right to live any place of their choosing, and for any reason, as long as appropriate arrangements are made for the children to maintain the relationship with their non-relocating parent.”
That opinion does not take account of the new parenting provisions which require the court in most circumstances to consider the children spending equal time with each parent and, failing that, substantial and significant time with each parent. The psychologist thought it was sufficient to maintain “a relationship” when the new parenting provisions are at pains to promote “a meaningful relationship” between the children and each of his or her parents.
More fundamentally, however, the psychologist’s opinion does not take account of the authorities to the effect that in any parenting matter, the court is to give paramountcy to the best interests of the children. The psychologist’s opinion appears to give paramountcy to a parent’s freedom of movement. The obligation on the court to ascertain whether, and, if so, how, the best interests of the children could be accommodated consistently with the proposed relocation does not alter the fact that the result must be one which is in the best interests of the children. For these reasons, the court is unable to give substantial weight to the recommendation of the psychologist.

The psychological effects of not relocating

This is not a case where the mother wishes to relocate to consolidate a relationship with a new partner who is established elsewhere.

The mother has a new partner who she has been married to for almost three years. They have an established home in M. If the relocation to Brisbane does not proceed, the mother and RG envisage that they will continue to live together in M.
The mother gave evidence that she has never been depressed and had never had any psychological problems. She said that she would not expect to have any psychological problems if she was unable to go to Brisbane and that she would make the best of it.
The psychologist gave evidence that if the proposed move to Brisbane did not proceed, the mother would be disappointed but resilient and her parenting ability would not be impaired.
The psychologist said that, if the relocation did not go ahead, the children would be disappointed, and might be resentful of their father for several months. However, the psychologist also said that the children were healthy and resilient and not moving to Brisbane would not distract them from school or other activities or otherwise affect their external life.

The psychologist also said that whether the children did feel resentment towards their father would depend in part on how the situation was presented to them. He indicated that the possibility of resentment would be minimised by the mother conveying only the objective facts, rather than attributing blame to the father, and by emphasising some of the positive things about remaining where they are.

Consideration

Bearing in mind that the best interests of TLS and CJS are the paramount consideration, and taking into account the various cases and principles mentioned above, my consideration of the relevant factors set out in s.60cc of the FLA is as follows.

The benefit to the children of having a meaningful relationship with both of their parents

It would clearly be of very great benefit to the children to continue to have a meaningful relationship with both of their parents.

Their mother and father both appear to be capable and loving parents. They each have different and important contributions to make to the children’s long term development and well-being. To maintain a meaningful relationship with the children requires both parents to spend a considerable amount of time with the children. This is particularly so in the case of CJS, who is only seven years old.

This factor is given primacy in this decision.

The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

There was no indication that either parent was exposing the children to physical or psychological harm.

Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views

The family report that was prepared in this case indicates that neither of the children is mature enough to determine their own best interests. The psychologist noted that CJS displayed a good relationship with his father and the mother reported to the psychologist that CJS had a good relationship with his father. In these circumstances, the court, like the psychologist, places little weight on CJS’s view that he does not wish to spend time with his father.
TLS continued to want to see her father each month and acknowledged that she would miss him if she moved to Queensland, as she wished to do. The court accepts the psychologist’s view that TLS is not mature enough at present to determine her own best interests. The court considers that TLS does not appreciate how difficult it would be for her to maintain a meaningful relationship with her father if she moved to Brisbane.

The nature of the relationship of the children with:

each of the children’s parents; and

other persons (including any grandparent or other relative of the children)

The children appear to have a good relationship with both of the parents and with their extended family on their father’s side.

Their relationship with their extended family on their mother’s side is perhaps underdeveloped.

The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent

In the past, both parents have facilitated a close and continuing relationship between the children and the other parent. However, the mother’s proposed move to Brisbane would create some considerable physical burdens for the children in maintaining a meaningful relationship with their father. The mother asserts that she is willing to pay for the additional costs necessitated by the move to Brisbane. However, the submissions of her counsel seriously undermine that assertion.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

either of their parents; or

any other child, or other person (including any grandparent or other relative of the children), with whom they have been living

The proposed relocation will put a large physical distance between the children and their father and their extended family. Although it is proposed that funds be made available by RG to enable the children to spend time with their father, there is considerable doubt that those funds will actually be used for that purpose. Accordingly, there is a real risk that, if the relocation proceeds, the children will see their father considerably less often than the mother’s proposal would suggest. That would not be in the children’s best interests.

The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis

As discussed above, the frequent travel between Brisbane and Melbourne will be at a substantial cost by any standards. In view of the limited financial resources of the mother and the risk that the mother will not actually pay for the airfares, the expense is a very weighty factor against the children relocating. As discussed below, there is no evidence on which the court could conclude that the father has sufficient funds to pay for the airfares.
There is also a significant practical difficulty in the children embarking on fairly frequent trips comprising five hours of travel, each way, door to door. While a two hour plane trip may be exciting if it is part of an occasional holiday, the ten hour round trip required in this case, on a regular basis, could prove oppressive for the children.

The capacity of:

each of the children’s parents; and

any other person (including any grandparent or other relative of the children);

to provide for the needs of the children including emotional and intellectual needs

Both of the children’s parents are clearly able to provide for the needs of the children, including their emotional and intellectual needs.

The contribution of other relatives and friends is also valuable for the children, and should be encouraged.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant

There do not appear to be any matters of particular significance in relation to this consideration, except perhaps in relation to the involvement of the mother and children in the R Centre. Whether the mother and children live in M, Brisbane or Melbourne, they will be reasonably close to an R Centre and will be able to continue to practice their religion in a church of the denomination of their choice. However, as noted above, the court accepts that the church in Brisbane has facilities and a congregation that would make it more congenial for a young family than the R Centre church in Melbourne or MW. The court gives this factor some weight, but by no means substantial weight.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

Both parents have demonstrated a reasonably good attitude to the responsibilities of parenthood, subject to the matters noted below.

Any family violence involving the children or a member of the children’s family

There was no suggestion of family violence in this case.

Any family violence order that applies to the children or a member of the children’s family, if:

the order is a final order; or

the making of the order was contested by a person

There was no suggestion of family violence in this case.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.

It would be preferable in the circumstances of this case to make orders that would be the least likely to result in the institution of further legal proceedings. The proposal of the mother’s counsel that the father could apply to the court, if the mother failed to pay for the airfares, in circumstances where the mother opposed orders being made that would minimise the need for such an application, highlights that further legal proceedings may well flow from the children relocating to Brisbane. That would not be in the best interests of the children.

Any other fact or circumstance that the court thinks is relevant

The court accepts that it would be of benefit to the children to live in a large city, as opposed to M. The father’s proposal would not prevent the mother relocating to Melbourne. Her husband said he would consider Melbourne as an option, subject to discussing it with his family.
The Melbourne option appears to have much to commend it. It is surprising that the mother does not show more consciousness of the benefits to her children of moving to Melbourne. Be that as it may, the court accepts that life in a large city would offer the children benefits that a small town, such as M, would not. Given that rural life also offers benefits to children, albeit different benefits, the court gives this matter some weight, but not substantial weight.

The extent to which each of the children’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the children’s parents:

(a) has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long term issues in relation to the children; and

(ii) to spend time with the children; and

(iii) to communicate with the children; and

(b) has facilitated, or failed to facilitate, the other parent:

(i) participating in making decisions about major long term issues in relation to the children; and

(ii) spending time with the children; and

(iii) communicating with the children; and

(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the children

The father has not participated in the children’s school lives and in particular has not attended parent teacher interviews. He says, and I accept, that he will do that when the children are in secondary school, if they do not relocate. As it would take the father three hours to travel to and from parent teacher interviews, it is understandable that the father has not attended them while the children are at primary school. Otherwise, the father has spent time with the children every third weekend and for a part of each school holidays.
The father has not opposed the children continuing to attend the church favoured by the mother. In a sense, and in view of the father’s departure from that church, this may indicate that the father has not taken as active and as assertive a role in issues relating to the children’s long term well being as he might have. On the other hand, it may simply indicate that the father is unwilling to impose his views on the mother and the children. I do not attempt to resolve this issue, as it was not pursued at trial.
On the whole, both parents have facilitated the involvement by the other in the children’s lives. The mother’s proposed relocation would, of course, change the structure of the father’s involvement in the children’s lives. Depending on whether the airfares were actually paid by the mother, and depending on whether the children found the amount and duration of travel oppressive, the relocation could considerably reduce the children’s ability to spend time with their father.
The mother has clearly fulfilled her obligation to maintain the children. The father has been assessed to pay child support. He was, until recently, in arrears to the extent of about $4,000. However, that sum was paid with an inheritance he received from his mother. Otherwise, the father has paid his child support as assessed.
The father was assessed for the period 19 August 2005 to 18 November 2006 on a taxable income for the 2004/2005 year of $25,000.

He lodged an estimate of income for the period 18 July 2006 to

18 November 2006 based on an annual income of $15,895.

His monthly child support liability was thereby reduced from $259.58 per month to $54.75. This is clearly a very small amount to pay towards the upkeep of two children.
The mother’s counsel asked the father (who was unrepresented) whether he had declared all of the cash payments he received from his lawn mowing clients to the Taxation Department. The court advised the father of his right to refuse to answer the question on the grounds of self-incrimination. The father chose to answer the question. The effect of his evidence was that he had some outstanding tax returns, but his calculations showed that he did not owe the Taxation Department anything.
On the evidence, there is no basis on which the court could properly conclude that the father is paying anything other than the correct amount for child support.

The events that have happened, and circumstances that have existed, since the parents separated

The events that have happened since separation have been described elsewhere in this decision. Essentially, there has been a stable arrangement for the children to spend time with their father.

The children are well-adjusted and resilient, and have a good relationship with their mother and father.

Resolution

In all the circumstances of this case, it is not in the best interests of the children that they relocate to Brisbane. For a family of modest financial means, the cost of the travel in this case would be a very weighty financial burden. The orders that have been proposed give the court no confidence that the mother will pay all of the travel costs or even a substantial part of them. If the mother does not pay the travel costs, or a substantial part of them, there is no reason to suppose that the father would have the capacity to make up the difference.

The result will be that the children will not spend time with their father, or, at least, a sufficient time to maintain a meaningful relationship with him.
The father did say in evidence that if the children relocated to Brisbane, he would consider moving there. However, there is no basis on which the court could conclude that there is any reasonable likelihood of that actually happening. As a result, the court must, in the best interests of the children, discount that possibility.
Even if RG were willing to bind himself to spending the bulk of the proceeds of the sale of his house in airfares, the proposed relocation would not be in the children’s best interests. For a family of modest means, the $60,000 would be better spent in more basic aspects of the children’s needs than frequent air travel, in circumstances where the move to Brisbane offers only marginal benefits to the children.
As has been made clear by the High Court, the mother’s freedom of movement must yield to the best interests of the children.

Those interests primarily require that the children be able to maintain a meaningful relationship with their father.
The proposed relocation would jeopardise that relationship to an extent that is unacceptable. Accordingly, there will be orders restraining the mother from relocating the residence of the children more than two hundred kilometres from the corner of Bourke and Elizabeth Streets in Melbourne.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:

Date: