Sadler & Sadler & Anor

FAMILY COURT OF AUSTRALIA

SADLER & SADLER AND ANOR

[2009] FamCA 974

CHILDREN - Relocation - Final parenting orders were made in August 2008 after a final hearing which provided for the children to live with the father and spend time with the mother each alternate Saturday during the day for seven hours - Since those orders were made the father decided he wanted to relocate with the children from New South Wales to Victoria and has obtained a transfer with his employer - The mother’s relationship with the middle child completely broke down in the meantime and the middle child is refusing to spend time with the mother - The oldest child has not been spending time with the mother since before the orders were made in August 2008 - The mother is opposing the father’s relocation application - Orders made that will accommodate the residence of the father and children being located a substantial distance away from the residence of the mother

Family Law Act 1975 (Cth)

A v A: Relocation Approach (2000) FLC 93-035
Bolitho v Cohen (2005) 33 Fam LR 471
Goode & Goode (2006) FLC 93-286
McCall v Clark (2009) FLC 93-405
Rice v Asplund (1979) FLC 90-725
Sampson v Hartnett (No 10) (2007) FLC 93-350
Taylor v Barker (2008) 37 Fam LR 461
U v U (2002) 211 CLR 238

APPLICANT:

Mr Sadler

FIRST RESPONDENT:

Ms Sadler

SECOND RESPONDENT:

Mr Blake

INDEPENDENT CHILDREN’S LAWYER:

Ms O’Rourke

FILE NUMBER:

NCC

1112

2007

DATE DELIVERED:

15 October 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

28 & 29 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Davies

SOLICITOR FOR THE APPLICANT:

Ms Hackney, O'Hearn & Bilinsky

COUNSEL FOR THE FIRST RESPONDENT:

Mr Kelly

SOLICITOR FOR THE FIRST RESPONDENT:

Mr Haricharan, Hunter Family Law Centre Pty Ltd

COUNSEL FOR THE SECOND RESPONDENT:

Not Applicable

SOLICITOR FOR THE SECOND RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O'Rourke, Legal Aid NSW

Orders

Orders 4, 5, 6, 8, 9, 17 and 18 made by this Court on 13 August 2008 are discharged insofar as they apply to the child S, born on … May 1996.
Each of the parties shall take all reasonable steps to ensure that the child S spends time and communicates with the mother in accordance with the child’s expressed wishes.
Whilst ever the father lives more than 200 kilometres away from the residence of the mother:
3.1Orders 4, 5, 6, 8, 9, 17 and 18 made by this Court on 13 August 2008 are suspended in respect of the child J, born on … March 2001.
3.2Each of the parties shall take all reasonably steps to ensure that the child J spends time with the mother as follows:
3.2.1During the school holiday periods of the State in which she resides, at the end of terms 1, 2, 3 and 4, from 10:30 am on the Wednesday of the last full week of the holidays until 3:30 pm on the following Saturday.
3.2.2On the Labour Day long weekend in March each year, from 10:30 am on Saturday until 3:30 pm on Sunday.
3.2.3On the Queen’s Birthday long weekend in June each year, from 10:30 am on Saturday until 3:30 pm on Sunday.
3.2.4On the fourth weekend after the commencement of school in terms 3 and 4, from 10:30 am on Saturday until 3:30 pm on Sunday.
3.3Each of the parties shall take all reasonable steps to ensure that the child J communicates with the mother as follows:
3.3.1Between 7:30 pm and 8:30 pm on each alternate Sunday, commencing on the first Sunday on which the child is resident at a place more than 200 kilometres away from the residence of the mother.
3.3.2Between 7:30 pm and 8:30 pm on each of Mother’s Day, the child’s birthday, and the mother’s birthday.
For the purposes of implementing Order 3.2 hereof:
4.1The father shall cause the delivery and the mother shall cause the collection of the child at the commencement of the time to be spent with the mother at W Children’s Contact Service.
4.2The mother shall cause the delivery and the father shall cause the collection of the child at the conclusion of the time spent with the mother at the same place.
4.3If the W Children’s Contact Service is not open, so as to frustrate compliance with Orders 4.1 and/or 4.2 hereof, the parties shall cause the delivery and/or collection of the child at the McDonald’s Restaurant at W, New South Wales, and for that purpose the parties are not to approach within 20 metres of one another.
For the purposes of implementing Order 3.3 hereof, the father shall ensure that the child telephones the mother on the mother’s mobile telephone number at the commencement of the time for their communication, and the mother shall ensure that she is able to receive the child’s call on that number at that time.
Whilst ever Order 3 hereof is operable, the mother shall pay to the father the sum of $350.00 on 1 December and 1 June each year.
Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address and mobile telephone number.
In the event that the child J expresses any reluctance to spend time or communicate with the mother, the father must forthwith arrange at his expense for the child to consult with a suitably qualified counsellor for as long, and as frequently, as deemed reasonably necessary by that counsellor.
That pursuant to s 65DA(2) and s 62B of the Act, 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 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.
Any and all outstanding applications are dismissed.
The mother’s costs in respect of the Application in a Case filed by the father on 22 June 2009 are reserved.

NOTATIONS

A.These orders are made in expectation of the father imminently accepting a transfer by his employer from New South Wales to Victoria.
B.Orders 6 and 7 hereof do not require the mother’s breach of the Final Apprehended Violence Order made between the parties at the Local Court of NSW on 11 January 2008, by reason of the provisions of Clause 6 of that Final Apprehended Violence Order.
C.The second respondent is the biological father of the child C born on … January 1993, who supported the position of the father in the former proceedings before Justice Ryan which resulted in parenting orders made on 13 August 2008, and has not participated in these proceedings.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1112 of 2007

MR SADLER

Applicant

And

MS SADLER

First Respondent

MR BLAKE

Second Respondent

REASONS FOR JUDGMENT

Introduction

The parties in these proceedings called upon the Court to determine the following three applications:
a)An Application in a Case filed by the father on 22 June 2009, which is an application to review property adjustment orders made by a Judicial Registrar pursuant to s 79 of the Family Law Act1975 (“the Act”) between the parties on 27 May 2009;
b)An Initiating Application filed by the father on 10 August 2009, which is an application by the father for parenting orders that would permit himself and the three children to relocate from the Newcastle district in New South Wales to Melbourne in Victoria; and
c)An Application in a Case filed by the mother on 24 September 2009, which is an application by the mother to vacate the hearing of the father’s abovementioned Initiating Application.
The parties were previously in dispute in respect of both parenting and property adjustment orders. Those disputes were resolved by two separate hearings held before the Court. On 13 August 2008, Her Honour Justice Ryan delivered reasons for final parenting orders made between the parties. On 27 May 2009, Judicial Registrar Johnston delivered reasons in respect of property adjustment orders made between the parties.
The current live applications came before Her Honour Justice Ryan on 10 August 2009, at which time procedural orders were made for the father’s two substantive applications to be determined. The proceedings were listed for hearing before the Court on 28 September 2009 with two days allocated.
The mother’s Application in a Case was filed only days before the allocated hearing date and was listed for hearing at the same time.

Application in a Case filed 22 June 2009

When these matters came before the Court on Monday 28 September 2009, the father indicated that he abandoned his application to review the property adjustment orders formerly made by the Judicial Registrar.
Although the father’s solicitor had notified the Court and the mother’s representatives in the previous week that such abandonment would likely occur, no Notice of Discontinuance was filed by the father.
As a consequence of the father formally announcing to the Court his abandonment of that Application, the Application was dismissed with the consent of the mother, subject to reservation of the mother’s foreshadowed costs application.

Application in a Case filed 24 September 2009

The mother pressed her application to vacate the hearing allocated to the father’s Initiating Application, in which he sought orders permitting him to relocate with the children interstate.
In support of that Application the mother read her affidavit filed on 24 September 2009. She was not required for cross examination on that evidence.
After hearing submissions from the parties, the mother’s Application in a Case was dismissed, with reasons to be delivered later. These are those reasons.
The basis of the mother’s application to vacate the hearing was twofold. Firstly, the mother asserted that a subpoena she had caused to issue to the father’s employer had been the subject of incomplete compliance, which rendered her unprepared to contest the case. Secondly, the mother asserted that the Family Report prepared by the Family Consultant pursuant to procedural orders made by Justice Ryan on 10 August 2009 was deficient in that it did not address the family predicament in a sufficiently comprehensive way, which deprived the Court of important evidence.
The father is an employee of the A Organisation. He contends that he has secured a transfer of his employment from New South Wales to Victoria. That is the basis of his application to relocate from New South Wales to Victoria with the children. When notified of the father’s wishes, the mother caused a subpoena to issue to the A Organisation. A Organisation initially answered the subpoena on 23 September 2009, but produced further documents in answer to the subpoena on 28 September 2009.
The mother contended that the documents produced by A Organisation are deficient in that other documents must exist that have not been produced. There was no basis for that submission, but for the speculation of the mother and her legal representatives.
The subpoena, which the mother caused to issue to the Proper Officer of A Organisation, required production of documents described as:
“All records, notes, correspondence, memoranda, application forms and the like relating to the proposed transfer of [the husband], date of birth […], Employee ID: […] from […] New South Wales to […] Victoria”
The mother tendered in evidence the documents produced by A Organisation in response to the subpoena, which now comprise Exhibit M1, and it is not apparent from the face of the documents that the production by A Organisation is incomplete. The documents produced appear to answer the subpoena satisfactorily.
Later, in the course of the substantive hearing, the mother tendered in evidence, as Exhibit M3, a document produced by the father pursuant to her call during his cross examination. The document is entitled “Preferences and Restrictions View”. The mother submitted at the conclusion of the substantive hearing that that document ought have been amongst the documents produced on subpoena by A Organisation. There are several answers to that submission.
Firstly, that document does not necessarily fall within the ambit of the documents required by the subpoena because the document was not compiled specifically in relation to the father’s transfer from NSW to Victoria. It was a document prepared generically on 3 March 2009 for any potential move by him within A Organisation, stating his preference for the Melbourne area and the reasons why. It is understandable how the recipient of the subpoena at the A Organisation may have innocently thought that such a document fell beyond the scope of the subpoena.
Secondly, the father’s evidence was that Exhibit M3 was a document that he had downloaded from his computer. The “Preferences and Restrictions View” was completed by him electronically on-line. The information conveyed by the father to A Organisation in that form may still have been in an electronic format at A Organisation. Part E of the subpoena directed A Organisation to produce “documents” to the court. “Documents” may include records and information stored electronically by computer (s 25 Acts Interpretation Act 1901 (Cth)), but it may not have been apparent to the recipient of the subpoena at A Organisation that such electronic information could constitute a document.
Thirdly, although the entire document was not produced under subpoena, an extract of the document was actually among the documents produced by A Organisation. The material part of the document, containing the father’s reasons for a transfer, was extracted and entitled “Extract From [human resources database] – [employee’s statement]”. The father pointed that out when Exhibits M1 and M3 were shown to him in cross examination.
In any event, the complaint made by the mother about incomplete compliance with the subpoena seemed futile in the circumstances. The mother advances a case that the father is under no obligation to transfer his employment from New South Wales to Victoria. That is not a contentious issue. The father admits that the transfer was voluntary, not compulsory. He applied for the transfer because he wished to take up a position closer to his own parents in Victoria and simultaneously enhance his career. His application was successful and A Organisation has now directed his transfer. It was therefore an otiose exercise for the mother to issue a subpoena looking for documents designed to prove that the father’s proposed move was voluntary when he has conceded that all along.
The argument about the deficiency of the family report is similarly arid. The mother was legally represented when the Court made procedural orders on 10 August 2009. Those orders included specification of the issues that the Family Consultant was required to expressly address in her updating Family Report. No complaint was made by the mother’s solicitor about the ambit of the issues to be covered in the Family Report at that time, or since. The first time that the argument about the deficiency of the Family Report was aired was on the morning of the hearing when the mother’s counsel made submissions to the Court to that effect as a reason for the trial date to be vacated.
The Family Consultant notes in her updating report at the outset that it was an “urgent short report”. Nevertheless, it is a report that runs to 74 paragraphs and adequately addresses the issues to which the Family Consultant’s attention was directed by the procedural orders made by Justice Ryan on 10 August 2009.
The Family Consultant interviewed both parties and each of the three children. She also interviewed the children’s school principals by telephone, read the preceding expert reports prepared for the former parenting proceedings before Justice Ryan, read the recent documents filed by the parties, and perused the documents produced on subpoenae. I am satisfied that the Family Consultant gave the matter exemplary consideration.
The parties were involved in a hearing before this Court only 12 months ago, which resulted in a comprehensive judgment being delivered by Her Honour Justice Ryan. There are only two issues that have changed in the lives of the family members since that time – being the father’s wish to relocate to Victoria with the children, and the breakdown in the relationship between the mother and the child S. Both of those issues are squarely addressed by the Family Consultant in the updating Family Report.
The mother’s application to vacate the hearing was opposed by both the father and the Independent Children’s Lawyer. In my view, their resistance of the application was well founded.

Application of the principle in Rice v Asplund

Once it became known to the mother that the substantive relocation application of the father would proceed to hearing, the mother made a further submission that the father’s application ought be summarily dismissed pursuant to the principle established by Rice v Asplund (1979) FLC 90-725, on the basis that there had been no material change in the parties’ circumstances since Her Honour Justice Ryan delivered reasons on 13 August 2008 in respect of the final parenting orders made by the Court.
I accepted the submissions of the father and the Independent Children’s Lawyer that such an argument could not be sustained.
This is not a case in which the father is attempting to re-litigate issues determined between the parties by Her Honour Justice Ryan in reasons delivered on 13 August 2008. The issue of relocation by either party away from the Newcastle district simply did not arise in the hearing conducted before the Court in July 2008.
The father’s current Application, filed on 10 August 2009, came before Her Honour Justice Ryan on that very day for case management. Had Her Honour thought that the Application offended the principle in Rice v Asplund, no doubt Her Honour would not have permitted the Application to be listed for hearing or made procedural orders for that to come to fruition. It was not contended by the mother then that the Rice v Asplund principle precluded consideration and determination of the father’s current Application. The argument was first raised following the filing of the mother’s Application in a Case on 24 September 2009.
At the time that the parenting orders were litigated between the parties in July 2008 it was the expectation of the parties that they would continue residing for the foreseeable future in the Newcastle district. The case now being agitated by the father is that in or about January 2009 he began considering the prospect of a move of residence for himself and the children from the Newcastle district of New South Wales to Melbourne in Victoria. His motives for considering such a change of residence were a wish to move closer to his aging parents, one of whom has deteriorating health, and also to continue improving his career within A Organisation.
The wish of the father to move interstate with the children is a change in circumstances since the hearing was conducted between the parties 12 months ago. Whether the Court ought permit the father and children to relocate is a question for the substantive hearing, but the fact that the father has formed a fervent wish to relocate with the children since the time of the last hearing, when that relocation would necessarily preclude compliance with existing parenting orders, is undoubtedly a change in circumstances for the parties and their children of sufficient magnitude to warrant the Court’s consideration.
The mother contended that a mere wish on the part of the father to change his place of residence was not a material change in circumstances at all. Were that so, parties would never be able to change their place of residence after a substantive hearing about parenting orders. The mother’s implicit suggestion that the place of residence of the parties is immutable following a substantive parenting hearing simply cannot be correct.

There was an additional change in the circumstances of the parties since the hearing in July 2008. The relationship between the mother and the middle child S completely broke down in about March 2009. S ceased spending time with the mother pursuant to the parenting orders made by Her Honour Justice Ryan on 13 August 2008. That was also a matter warranting the Court’s attention, and was the subject of comment by the family consultant in her updating Family Report.
This is not a case in which the hearing of the pending Application was precluded by application of the rule established in Rice v Asplund.
The Application of the father filed on 10 August 2009 was therefore permitted to proceed to substantive hearing.

Initiating Application filed on 10 August 2009

On 13 August 2008 this Court made final parenting orders between the parties, the effect of which were generally that:
a)   The father have sole parental responsibility for the three children.[1]
b)     The children live with the father.[2]
c)     The two youngest children spend time with the mother during the day each alternate Saturday and on Mother’s Day,[3] with provision for a little extra time in the event of certain conditions being met by the mother.[4] There was no provision for time to be spent by the eldest child with the mother. There was no provision for any of the children to otherwise communicate with the mother.
[1] Order made by the Family Court of Australia on 13 August 2008, Order 2
[2] Order made by the Family Court of Australia on 13 August 2008, Order 3
[3] Order made by the Family Court of Australia on 13 August 2008, Order 4
[4] Order made by the Family Court of Australia on 13 August 2008, Order 17
Those orders were made when the households of the parties were situated relatively close together. The current Application was filed by the father because of his desire to relocate his residence, and that of the children, from NSW to Victoria. Such relocation would preclude his compliance with the existing parenting orders that apply to the two youngest children.
At the hearing, the father supplemented the orders proposed by him in his Application filed on 10 August 2009. He tendered a minute of the additional orders he sought, which was marked Exhibit F1.
In summary, the effect of the father’s proposals is that he be permitted to relocate with the children from the Newcastle district in New South Wales to an area proximate to Melbourne in Victoria. He proposes that the youngest child J continue to see her mother by travelling back to Newcastle for short periods in school holidays, and also on four Saturdays in Melbourne when he proposes that the mother would travel down to Victoria from NSW. He additionally proposes fortnightly telephone communication between J and the mother. He suggests that the two eldest children spend time and communicate with the mother only when they wish to do so.
The mother’s position has vacillated.
In her Response filed on 19 August 2009, the mother seeks dismissal of the father’s Application, which would ensure retention of the existing parenting orders made on 13 August 2008. In the event that the Court was persuaded to permit a relocation, then the mother alternatively proposed that all previous parenting orders be discharged, that the children remain living with the father, that parental responsibility be re-allocated so that it was shared equally by her and the father, and that the two youngest children spend considerably greater block time with her in school holiday periods in the Newcastle area at the father’s expense. She also sought telephone communication with all children.
When the mother conferred with the family consultant on 8 September 2009 she contended that if the father was to relocate to Victoria then the Court should order that all three children change residence and live with her.[5]
[5] Family Report dated 15 September 2009, pars 11-12
By the time that the matter came on for hearing before the Court, the mother had reverted to the position set out within her Response.
The Independent Children’s Lawyer adopted a preliminary position not opposing the father’s proposal to relocate with the children. By the time of final submissions the Independent Children’s Lawyer held a firmer view that the relocation ought be permitted. A minute of the orders proposed by the Independent Children’s Lawyer was marked Exhibit ICL2.

Documents read in evidence

In support of his Application, the father read the following the documents in evidence:
a)Affidavit of the father filed 10 August 2009.
b)Affidavit of the father filed 7 September 2009.
c)Affidavit of the paternal grandmother filed 9 September 2009.
In rebuttal of the father’s Application, the mother read the following documents in evidence:
a)Affidavit of the mother filed 8 September 2009.
b)Affidavit of Mr D filed 8 September 2009.
The Independent Children’s Lawyer adduced evidence from the Family Consultant, Ms K, in the form of her Family Report dated 15 September 2009.
The parties jointly requested the Court to also read and consider the parenting orders made by Her Honour Justice Ryan on 13 August 2008, and Her Honour’s reasons for those orders.

Evidence adduced by the father

The father agreed that he had commenced making preliminary inquiries about the prospect of his move to Victoria in about January 2009.
He formalised his intentions by completing an A Organisation online form in which he expressed his preferences for vocational advancement and geographic location.[6] That occurred on 3 March 2009.
[6] Exhibit M3
He raised the topic of the prospective move to Victoria, at least with the eldest child C, in about April 2009. He said that he raised the issue with the children because he had made advance inquiries about a move and he needed to gauge their interest before making an ultimate decision that he should relocate.
The father had decided that he would like to relocate with the children to an area close to Melbourne in Victoria. He advanced reasons for that decision. He desired to live closer to his aging parents, who themselves resided in Victoria. He considered that a move to Victoria would enable him to live sufficiently close to his parents and also enhance his career development within the Organisation.
The father attempted to arrange for a mediation session between the parties to discuss his wish to relocate. On 14 May 2009, the appointed mediator certified that the dispute over the relocation was not considered appropriate for family dispute resolution.[7] It remains unclear as to why the mediator held that view. In any event, the mediator furnished the father with a certificate under s 60I of the Act.
[7] Affidavit of the father filed 10 August 2009, Annexure B
The father was notified by his employer of his transfer to Victoria on 24 July 2009. It is now expected by the Organisation that he will take up the transfer on 9 November 2009.[8]
[8] Affidavit of the father filed 7 September 2009, Annexure A
Once the father learned of his transfer, he instructed his solicitor to write a letter to the mother advising of that development on 3 August 2009. There was no response to that letter from the mother, although it must be observed that she had little time to do so before the father commenced the proceedings by filing his Application on 10 August 2009.
If the father does not accept the transfer, and remains at Newcastle either by choice or compulsion, then his future employment circumstances are uncertain. His tenure with his current team, which is located at Newcastle, has expired and he is liable to transferred by A Organisation to any position, at any location, at any time in the future.
The father would be at liberty to complete a “Preferential Treatment” application requesting A Organisation to retain his employment at Newcastle, but the father is unable to say whether such an application would receive favourable treatment from the Organisation. Nor could he offer any evidence about the permanency of his stay at Newcastle even if afforded temporary preferential treatment. Understandably, neither party was in a position to adduce reliable evidence about such a hypothetical event.
The father’s desire to relocate to Victoria is strong. Nevertheless, he said that if the Court ordered that the children remain in their current geographical location he would stay living in this area. He would not move to Victoria without the children, and in those circumstances he would want the existing parenting orders to continue without change.
The father said that he had not considered the option of retirement from A Organisation so as to permit him to remain living in the current location. He wishes to retain his employment with the Organisation. The father did, however, say that he would consider moving back to New South Wales from Victoria if his relocation with the children caused a breakdown in the relationship between the mother and the youngest child J.
The father was cross-examined about the inquiries he had made about other transfers, commensurate with his position, that would permit him to continue working at the Newcastle location. The father conceded that there was a possibility of a position for him in a different department but that he did not pursue that option as it was of little interest to him. He contended that there were no other positions at Newcastle that were suitable, given that he needed a position that did not involve shift work as a consequence of his responsibilities as residential parent to the children.
There were no positions for the father within his desired department at Newcastle. The father was desirous of a particular position, and that is the position to which he has been transferred in Victoria.
The father conceded that he had not spoken to his parents about the prospect of them moving from Victoria to live closer to him around Newcastle, New South Wales. That was confirmed by the father’s mother. She said that she was 65 years of age, that her husband was 68 years of age, and that they lived in Victoria in proximity to other family members and friends. She had no desire to move residence with her husband.
The father formulated his new proposals about the time that J would spend with the mother, and the manner of their communication by telephone, in expectation of there being some 1,200 kilometres in distance between their respective households if the relocation to Victoria is permitted.
The time that the father proposes be spent by J with the mother was calculated so as to be roughly equivalent with the time that J would spend with the mother across a calendar year in accordance with the existing orders.
The father is now proposing that J spend overnight time with the mother in school holiday periods, despite the fact that J has not spent time with the mother overnight since 2006. He acknowledged that that would be a significant change. The reason for his proposal is that he regarded it as the only workable way of ensuring a reasonable amount of time being spent between J and the mother, should he relocate the household of the children to Victoria. He agreed that his proposals were not born out of any changed opinion on his part that the mother had improved her personal circumstances so as to justify such a change in the way J would spend time with her.
Her Honour Justice Ryan had previously found, in her reasons delivered on 13 August 2008, that J should not spend overnight time with the mother unless the mother consulted a psychologist or counsellor for therapy, and that that psychologist or counsellor was able to report that the mother presented little further risk to the child. The Court made orders accordingly.[9]
[9] Orders 4 & 17 made by the Family Court of Australia on 13 August 2008
The father was cognisant of those findings, but he did not believe that he could afford to travel with J to Newcastle, New South Wales, so as to permit J to spent time with the mother only during daytime hours on consecutive days. Apart from the financial considerations, the father only has 20 days leave per annum to use.
The father conceded that he was aware that the Family Consultant regarded four discrete visits by J to the mother in school holidays periods to be too infrequent a regime of interaction for J and the mother. That realisation was the genesis for the additional orders he proposed in Exhibit F1, which would permit the mother to travel to Melbourne to visit with J for one day during each school term. However, when cross-examined by the Independent Children’s Lawyer, the father was prepared to entertain the idea of him funding J’s travel to Newcastle for one weekend in each school term, in addition to the school holiday time she would have with the mother in Newcastle at his expense. He did however regard it as preferential if the mother could make a financial contribution to defray that expense.
The father also conceded that his proposal for fortnightly telephone communication between J and the mother would be at odds with the former findings of Her Honour Justice Ryan, who found that the parties had both misused the telephone in the past by making unpleasant telephone calls to one another and leaving inappropriate messages for one another. He nevertheless thought that it was necessary, as a compromise, in order to permit J to stay in more regular touch with the mother.
It was acknowledged that any order for telephone communication would need to be carefully crafted so as to achieve consistency with the Apprehended Violence Order that continues to exist as between the parties.[10]
[10] Affidavit of the father filed 10 August 2009, Annexure C
The father was also cross-examined about the breakdown in the relationship between S and the mother.
During the proceedings conducted before Her Honour Justice Ryan, it was clear that S was troubled by the mother’s denigration of the father. The Court identified that such behaviour by the mother was causing S to resist spending time with the mother.
Following the orders being made by the Court on 13 August 2008, S continued to spend time with the mother in accordance with those orders. The father alleges that S would still often return to him complaining of the mother’s continuing denigration of him. The father alleges that S complained to him that she was not even allowed to speak of the father in the mother’s household.
On 25 February 2009, the father sent a letter to the mother reporting matters of concern to him that had allegedly been drawn to his attention by S on her return from the mother’s household. It was alleged that the mother had interrogated S about a specific event. By that point the father believed that the relationship between S and the mother was poised for breakdown. The father required S to continue spending time with the mother in accordance with the parenting orders.
Following an argument between S and the mother in March 2009, S ran away from the mother and has refused to return to the mother ever since. The cause of the argument, and who might be blamed for it, is immaterial. It is uncontroversial that from that point in time the relationship between S and the mother has been so seriously fractured that S simply refuses to spend time with the mother or communicate with her.
Regrettably, the eldest child C is also estranged from the mother. The breakdown in their relationship pre-dated the hearing in July 2008 before Her Honour Justice Ryan. For that reason, no orders were then made by the Court for C to spend time with the mother. It was left entirely to the discretion of C.
The father conceded that he is concerned that neither C nor S presently wish to spend time or communicate with their mother. He contends that he is willing to facilitate them spending time and communicating with their mother should they desire it, but that it is not up to him to cajole their adherence to a regime of interaction with the mother. He wishes to retain their trust and he regards them as having sufficient maturity to decide that issue for themselves.
The father remains concerned that the mother has not availed herself of the therapeutic intervention envisaged by Her Honour Justice Ryan so as to invoke the orders permitting the children to spend extra time with her. The father considers that if the mother is not sufficiently motivated to take such steps, then it is not for him to exert pressure on the children.

Evidence adduced by the mother

It was apparent from the very beginning of the mother’s cross-examination that she remains very embittered towards the father. Almost invariably, she felt unable to refer to the father other than by his full name “[Mr Sandler]” or by the epithet “your client”.
Many of her answers were unresponsive to questions posed to her. Even when her answers began in a responsive way, they often meandered away from the point in order that she might inform the Court of some fact, allegation, or incident she considered important.
The mother flatly refused to accept the genuineness of the reasons advanced by the father for his proposed relocation with the children to Victoria. She believes that the father’s reasons are a ruse. She believes that the father’s genuine reason for orchestrating the relocation is to further his attempts to alienate all of the children from her.
Although the mother may honestly harbour that belief, there is no evidence to reasonably support it, either expressly or inferentially.
The mother believes that the father has been responsible for the alienation of the two eldest children, C and S, from her. She was forced to concede the obvious in cross-examination, namely that if that were so then the father had been able to achieve the alienation whilst he and the children lived in close proximity to the mother in the Newcastle area. That issue therefore had limited relevance to the question of whether the father ought be permitted to relocate with the children to Melbourne. If the mother’s fear was about a potential alienation of the youngest child J from her then the risk of that occurring is just as present irrespective of whether J lives in New South Wales or Victoria, having regard to her experiences with the elder children. Ensuring that the father and the children remain in Newcastle would not obviate the risk of alienation between J and the mother.
Although the estrangement between the mother and C has existed for some time, the mother’s estrangement from S only crystallised in March 2009. The mother was asked in cross-examination whether she accepted any responsibility for S’s feelings towards her. Puzzlingly, after some delay, the mother’s reply was that she ought have stayed in Tasmania with the children in 1999. It was about that time that the mother, father and children moved interstate from Tasmania. It followed from the mother’s incongruent answer that, apart from her decision to move with the family interstate some 10 years ago, she did not accept any responsibility for S’s estrangement from her.
Because the father had been criticised about his failure to have S counselled at or about the time that her relationship with the mother failed, the mother was also questioned about what steps she took to remedy that situation. Her initial answer was “None”. She then elaborated her answer, but ultimately said that she felt powerless to take any remedial action. She said that she felt the need to “take a step back, so the children do not have to suffer” because she always has to confront the father’s “lies and games”.
In the prior hearing before Her Honour Justice Ryan in July 2008, expert evidence had been adduced concerning the psychological condition of the mother. The Chapter 15 Expert, Ms E, had come to the conclusion that the mother was then suffering from Borderline Personality Disorder. The mother had been consulting her own psychiatrist, Dr M since about 2006. Dr M generated a report for that hearing in which he concurred with the diagnosis of Ms E. Those independent diagnoses were not contradicted by any other evidence.

On 13 August 2008, Her Honour Justice Ryan made orders inviting the mother to avail herself of further psychological therapy, with a view to increasing the time that would then be spent with her by the two younger children.[11] It was common ground in this case that the mother had taken no further action in that regard.
[11] Order 17 made by the Family Court of Australia on 13 August 2008
In the current proceedings the mother annexed to her affidavit a letter dated 7 July 2009, written by Dr M to her solicitor.[12] In that letter Dr M reports that the mother sought a report from him for the purpose of increasing the time that she spent with the children. It is not apparent from the face of Dr M’s letter that the mother had been continuing any treatment with him between the time of the last hearing and her request of him for the report. In any event, Dr M reports that there has been little change in the mother’s mental state. The obvious conclusion to be drawn is that Dr M still considers the mother to suffer from Borderline Personality Disorder.
[12] Affidavit of the mother filed 8 September 2009, Annexure O
The mother was cross-examined about her psychological condition. She was particularly evasive when she was repeatedly asked whether she believed that she did in fact suffer from Borderline Personality Disorder. Ultimately, she was only prepared to concede that she suffered from stress.
I accept that the mother is a reasonably intelligent woman. She certainly believes that she is. The mother was finally compelled to admit in cross examination, as a logical fact, that it would be difficult for her to accept treatment for a condition from which she does not believe that she suffers.
The mother was cross-examined by the Independent Children’s Lawyer on the contents of documents produced on subpoena by the Hunter New England Area Health Service, which documents were subsequently tendered in evidence as Exhibit ICL1.
Those documents disclose that the mother presented herself to the Hunter Valley Mental Health Service on 7 October 2008. She is reported as having referred herself to the Service requesting clarification of the diagnosis of Borderline Personality Disorder given to her by a “psychologist from the Family Law Court”. She disputed the diagnosis and wanted a second opinion.
The notes of the Service also disclose that the mother presented with “restricted affect, smiling inappropriately at times” and that she was “difficult to interrupt” when ruminating about her life. The mother gave her evidence in a similar way.
The notes of the Service record that the mother claimed that the father had “sexually abused her children but the children have been placed in his care”. A finding was made by this Court in the past that the father had sexually abused an older child of the mother unrelated to these proceedings, but no allegations have ever been made that the father has sexually molested any of the children who are the subject of these proceedings. The notes within Exhibit ICL1 permit a clear inference that such an allegation was made by the mother to the Service. It is possible that the mother’s comments were misinterpreted when the Service notes were created, but it is equally plausible that the mother was making a false allegation in an attempt to garner support for herself. I do not need to resolve that issue. Suffice it to say, the mother’s enmity towards the father has not abated since the hearing in July 2008.
The Service notes record that the mother returned to the Service two days later on 9 October 2008, at which time the mother was reported to be “more interested in making allegations against her ex that he sexually abused her children than in her mental health conditions” (sic). It was unclear to the Service why she had contacted the Service. Although the notes record that the mother “denied having any mental health problems”, the Service saw fit to advise her to follow up with a private psychiatrist.
The mother alleges in her affidavit that when she attended upon the Hunter Valley Mental Health Service on 9 October 2008, she was told words to the effect of “You don’t have a mental problem. Your problem is a legal problem and I suggest you see a lawyer”. She confirmed that evidence when cross-examined. Even if the mother was told that she has no “mental problem”, I do not accept that as an accurate diagnosis of her current condition. Her former diagnosis of Borderline Personality Disorder remains uncontradicted, and is inferentially supported by the documents comprising Exhibit ICL1 which disclose that she was advised to consult a psychiatrist. It is immaterial that she might also have been informed to consult a lawyer.
The mother lives alone in rental accommodation. She is a tenant of the New South Wales Department of Housing. She is not in gainful employment. Her only income is in the form of a Disability Support Pension from Centrelink.
The mother’s two eldest children, a daughter and a son, live in Tasmania. The mother’s mother lives in Tasmania. The mother periodically visits her family in Tasmania, having done so twice within the last 12 months. She travelled to Tasmania both in October 2008 and July 2009.
Questions were posed to the mother about why she would not consider moving to Victoria so that she could be closer to the children if they relocate, and closer to members of her own extended family in Tasmania. The mother said that she would not consider moving back to Melbourne under any circumstances because of the cold weather.
The mother is engaged to be married to Mr D, although no date is yet set for that ceremony. Apart from Mr D, the evidence discloses that the mother has no other important connection to New South Wales. Mr D said in evidence that he would not be moving to Melbourne whatever happens in these proceedings.
It is clear that the mother intends to remain living in the Newcastle district of New South Wales irrespective of whether the children also remain in that district or relocate to Victoria.
The mother has considered the father’s proposed alteration to the parenting orders. She is attracted to his proposal. She believes that the four discrete periods of overnight time that the father proposes J spend with her in school holidays would be superior to the arrangements that prevail under the existing parenting orders. The mother would like to amend the existing orders to reflect the father’s proposal, irrespective of the relocation. The mother’s only concern is the distance that the relocation would put between her own household and that of the children.
The mother contemplates the prospect of her travelling to Melbourne to spend even more time with the children. She even professes a willingness to incur the cost of her travel and accommodation in doing so.[13] She was cross-examined about her financial circumstances and how she might be able to afford to implement those arrangements. It transpired that her financial circumstances would barely permit it. However, her fiancé Mr D earns an income approximating $65,000.00 per annum. He said that he will support the mother financially as far as possible, including permitting use of his income to fund the cost of the mother’s travel to Melbourne, although that would require some careful budgeting on their part.
[13] Response filed on 19 August 2009, Order 6
The mother was also attracted to the idea of telephone communication with the children, provided the orders were carefully framed so as to avoid any direct communication between the parties. The mother’s proposal was that the parties could contact each other by telephone on an alternating basis so as to permit her communication with J, and the other two children if they were willing.

Evidence of the Family Consultant

The evidence of the Family Consultant was interposed at the conclusion of the father’s evidence. That occurred to meet restrictions in the availability of the Family Consultant.
The Family Consultant was firstly asked about the fracture of the relationship between S and the mother. The Family Consultant recorded S’s reasons for her not wishing to spend time with the mother as being, firstly, the mother’s unabated denigration of the father, and secondly, her perception that the mother treated J more favourably than her. The Family Consultant noted that those reasons were similar to the reasons S had advanced for the fragility of her relationship with the mother at the time of the earlier hearing in July 2008. There was consistency about S’s reasoning.
The Family Consultant considered that S’s stated concerns about her mother were a logical explanation for S’s current intransigent refusal to spend time with her mother.
The Family Consultant was mildly critical of the father for not having taken steps to have S counselled in the time period shortly following the disintegration of the relationship between S and the mother in March 2009. She was now inclined to the opinion that S’s views had become entrenched and that counselling would probably not alter S’s perceptions for the foreseeable future.
The Family Consultant was also interested in what steps the mother took to repair her relationship with S. She questioned the mother about that during their consultation, and in particular why she had not instigated court action or counselling intervention. The Family Consultant reported that the mother told her that she had insufficient financial resources to do so, and that she found the court process too stressful in any event.
The Family Consultant agreed with the proposition that it would be more difficult for the older children, C and S, to salvage their relationship with the mother from 1,200 kilometres away than it would if they remained living locally.
The Family Consultant recognised a pattern of behaviour evident in the family, being that once the children reach adolescence their relationship with the mother becomes strained and then breaks down.[14] That is what has already happened with C and S. The Family Consultant foresees that risk for J, but she regarded that risk as just as prominent whether J lived in New South Wales or Victoria. The Family Consultant regarded the behaviour of the mother to be the most significant feature in either the realisation or avoidance of that risk.
[14] Family Report dated 15 September 2009, par 69
The Family Consultant recognised that J would be the child most affected by the relocation. She concurred with the proposition that if J struggled to cope with the changes brought by the relocation then it would affect her relationship with the mother.
The Family Consultant indicated that she would not recommend any changes to the existing parenting orders if the father and children remained living locally. She remained concerned by the mother’s failure to avail herself of opportunities for J to spend more time with her under the existing orders. The mother told the Family Consultant during their consultation about having attended upon Dr M and some other person she described as a “personal support counsellor”, but the mother’s explanation about those attendances and her failure to procure any report about her emotional condition, which was necessary to permit the children to spend more time with her, manifested a lack of commitment.
There were other indicators of the mother’s failure to take an active participation in the children’s lives which concerned the Family Consultant. Apparently the mother had not taken steps to obtain school reports and school notices, nor attended parent/teacher interviews, as was permitted by the existing parenting orders.[15]
[15] Orders 12 & 19 made by the Family Court of Australia on 13 August 2008
In the opinion of the Family Consultant, should relocation occur, it would be important to facilitate the continuing relationship between J and the mother. J expressed a wish to see more of her mother, and the mother wished to see more of J.
The Family Consultant regarded it as important to strike a balance between J spending sufficient time with the mother to preserve, or even promote, their relationship on the one hand, and on the other hand, not spending so much time with the mother that she was exposed to the unacceptable risk of emotional abuse. The risk of such abuse, which would occur as a consequence of the mother’s denigration of the father and her interrogation of J, remains real.
The father’s proposal of four consecutive days, including three overnights, in each of the school holiday periods was a reasonable compromise between those competing considerations in the view of the Family Consultant.
However, the Family Consultant thought that that amount of time in each of the four school holiday periods alone was too infrequent a regime of interaction between J and the mother. She did not think that four discrete visits between J and the mother per year in school holiday periods would be sufficient to maintain and promote the relationship between them. The regime also needed balance in the frequency of visits between J and the mother, not just their duration.
In order for that aim to be achieved, it would be necessary for J to see the mother on an occasion during school terms. That would ensure that J spends time with the mother on average of about once every six weeks. The Family Consultant considered that amount of frequency, coupled with the duration of each of those visits, would be a satisfactory alternative to the current regime that entails J spending time with the mother on a fortnightly basis during the daylight hours only.
The Family Consultant agreed that a change to encompass J spending overnight time with the mother did offer an advantage. Overnight time is a more natural reflection of real life, and both J and the mother wanted to have overnight time together. However, the Family Consultant cautioned that the mother still needed to behave appropriately by ceasing her relentless denigration of the father and her interrogation of J.
The Family Consultant also recommended that, in the event of relocation, J should be able to communicate with the mother by telephone. She was wary that telephone contact could exacerbate conflict between the parties, but since the proposal for telephone communication was made by the father, the Family Consultant reasoned that he was prepared to commit to the idea. The Family Consultant agreed that the best manner to implement the telephone communication would be for the father to contact the mother, rather than vice versa.
The Family Consultant did not agree that communication between J and the mother ought be achieved by alternative electronic means such as by email and via internet sites like Facebook and Twitter. She regarded communication in that form as lacking sufficient regulation.
The Family Consultant was questioned about the appropriateness of the father having discussed the prospective relocation with the children. The Family Consultant declined to criticise the father for that. On the contrary, she regarded it as having been necessary for the father to raise the issue with the children so as to furnish them with some information about their prospective new circumstances to permit consideration and adjustment. She thought it appropriate for the father to have facilitated contact between C and the principal of his prospective school. Nor did she regard it as unsatisfactory that the father took J to Victoria with him to inspect his prospective new dwelling, in view of his inability to find a babysitter for J.
On the whole, the oral evidence of the Family Consultant simply served to elaborate the contents of her Family Report. She was not moved from any of the opinions or recommendations she expressed. She was open minded to the relocation and thought it appropriate that any time now spent between S and the mother should be at the discretion of S, just as it is with C.

Legal principles concerning relocation

Frequently this Court is called upon to adjudicate a dispute about the proposed movement of children’s residence to a geographically distant location, which would necessarily curtail the time that the children spend with their non-residential parent, and consequently affect the way in which the children’s relationship with the non-residential parent is maintained and developed. Disputes of that nature have been the subject of authoritative appellate consideration.
In U v U (2002) 211 CLR 238 the High Court, by majority, most recently distilled a number of important principles concerning “relocation” cases.
Firstly, the High Court confirmed that it is for the Court and not for the parties to define the issues in parenting cases.[16] If the parties wish to control the issues then they are able to enter into parenting plans. Once the parties are unable to reach a compromise and the matter is litigated before the Court, the best interests of the children are the paramount consideration in the determination of appropriate parenting orders, irrespective of the competing proposals of the parties. The Court is not bound to the polarised options submitted by the parties.[17] The making of orders that do not reflect the orders devised by either party does not vitiate the judgment or orders.[18]
[16] U v U (2002) 211 CLR 238 at 256-260
[17] U v U (2002) 211 CLR 238 at 284-285
[18] U v U (2002) 211 CLR 238 at 263
Secondly, the High Court noted that the parent wishing to relocate with the children bears no onus of proving the existence of compelling reasons for the relocation.[19]
[19] U v U (2002) 211 CLR 238 at 261
Thirdly, the High Court observed that it is unlikely that relocation disputes will admit of perfect solutions. Predictions about domestic, marital and social arrangements are matters upon which minds will inevitably differ. Findings about the children’s short, mid, and long term interests permissibly fall within a wide range of discretion.[20]
[20] U v U (2002) 211 CLR 238 at 262-263
Fourthly, the High Court stated that it should not be assumed that the non-residential parent cannot, or should not, contemplate moving so as to be nearer the relocating residential parent and children. The reasons for maintenance of the place of residence of the non-residential parent ought be explored at the hearing, just as the reasons for the proposed relocation of the residential parent are explored.[21] It must not be assumed that the residential parent must subordinate his or her wish to relocate to the wish of the non-residential parent to remain and pursue his or her life in a place of his or her choosing.[22]
[21] U v U (2002) 211 CLR 238 at 285
[22] U v U (2002) 211 CLR 238 at 286
Fifthly, the High Court recognised as self-evidently true that, apart from cases of abusive relationships, children benefit from the development of good relationships with both their parents.[23] That truism is underpinned by provisions of the Family Law Act.
[23] U v U (2002) 211 CLR 238 at at 285-286
The Full Court of the Family Court later noted in Bolitho v Cohen (2005) 33 Fam LR 471 that the High Court in U v U had ameliorated the more rigid and formulaic approach earlier marked out by the Full Court in A v A: Relocation Approach (2000) FLC 93-035.[24]
[24] Bolitho v Cohen (2005) 33 Fam LR 471 at 484
U v U and Bolitho v Cohen were both decided before the amendments to the Family Law Act were introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006, which Act was proclaimed to commence on 1 July 2006.
The Full Court of the Family Court has since had occasion to re-consider the principles established by U v U, and its own decisions, in light of those legislative amendments. Such a re-consideration was unavoidable because the amending Act altered the process by which the Court makes parenting orders.
As was recognised in Goode & Goode (2006) FLC 93-286, there is now a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children.[25]
[25] Goode & Goode (2006) FLC 93-286 at 80 and 901

In Taylor v Barker (2008) 37 Fam LR 461 the Full Court confirmed that the proposed relocation of children to a geographically distant place should be considered as just one of the proposals for the children’s future living arrangements, rather than as a discrete issue.[26]
[26] Taylor v Barker (2008) 37 Fam LR 461 at 475
The Full Court also held that a relocation proposal must be evaluated not only in the context of findings about what is in the children’s best interests under s 60CC of the Act, but also in the context of s 65DAA of the Act, which mandates consideration of the children spending equal, or alternatively substantial and significant, time with the other parent in the event of allocation of equal shared parental responsibility.[27]
[27] Taylor v Barker (2008) 37 Fam LR 461 at 475
To avoid devaluing the imperatives of the legislative provisions as they now stand, the Full Court recognised that the Court must balance the advantages and disadvantages of the relocation proposal with the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.[28] But it was observed that the Court must firstly give separate and real consideration to the options of “equal time” and “substantial and significant time” without regard to the relocation proposal.[29]
[28] Taylor v Barker (2008) 37 Fam LR 461 at 478 to 479
[29] Taylor v Barker (2008) 37 Fam LR 461 at 480
Whilst the High Court in U v U obliged the Family Court to consider the option of a non-residential parent relocating along with the residential parent and children, the Full Court in Taylor v Barker baulked at requiring the Court to embark upon a fact-finding mission about the option of persons other than the parents, which would include new partners and extended family members, moving so as to be closer to the parents in the event that the Court declines or permits the relocation.[30]
[30] Taylor v Barker (2008) 37 Fam LR 461 at 483
More recently, in McCall v Clark (2009) FLC 93-405, the Full Court again reviewed the authorities on relocation cases.
The Full Court endorsed its statements in Taylor v Barker[31]and confirmed the necessity for the Court to canvass all of the available options, including relocation of the non-residential parent to a place nearer to the relocating residential parent and children.[32]
[31] McCall v Clark (2009) FLC 93-405 at 83,466 – 83,467
[32] McCall v Clark (2009) FLC 93-405 at 83,468 - 83,471
When weighing the advantages and disadvantages of the competing options, the Full Court made it plain that it is the advantages and disadvantages to the children rather than the parties which are relevant.[33]
[33] McCall v Clark (2009) FLC 93-405 at 83,471
The application of section 60CC of the Act enables determination of what is in the children’s best interests. More specifically, by reason of section 60CC (2)(a), that inquiry entails primary consideration of the benefit to the children of having a meaningful relationship with both parents. The Full Court discerned that provision to mean that a Court is required to adopt a prospective approach.[34] Such an approach requires the determination of how orders can be framed, in the context of the available options, to ensure that the children enjoy the benefit of having a meaningful relationship with both parents into the future.
[34] McCall v Clark (2009) FLC 93-405 at 83,476
It is against the background of those principles that the evidence adduced by the parties must be analysed.

Available options

This case is atypical. Unusually, consideration of the proposed relocation is not taking place in the broader context of evaluation of alternatives where the children spend equal time in both households, or substantial and significant time in the non-residential household. Those residential issues were determined little more than 12 months ago by the Court, and those determinations remain efficacious.
The mother’s position in this case is that the children should still live with the father, and not spend substantial and significant time with her, irrespective of whether or not the relocation occurs. The proposal for relocation is therefore effectively being contested by the parties as a singular issue.
The reality is that the children will remain living with the father whatever the outcome. The only question to be determined is whether that will be in the Newcastle district of NSW or the Melbourne area of Victoria.
Dealing with the case in that manner superficially appears repugnant to the principles espoused in the authorities to which I have referred, but it must be remembered that in those cases there were other residential and parenting options available to the Court. There had been no recent comprehensive determination of parenting issues, as in this case. The Court was not confronted by such restricted alternatives, as in this case.
The mother has sought to re-open the issue of allocation of parental responsibility, but not with any vigour. There was no material cross examination of the parties or the Family Consultant on the issue, and no submissions were made about it. The issue was resolved by Her Honour Justice Ryan with such recency that Her Honour’s findings remain valid. The respective current parenting proposals of the parties do not genuinely revive consideration of the allocation of parental responsibility for the children.
Consideration of whether the relocation of the children with the father will be permitted must be undertaken in the context of the children’s best interests, which are determined by reference to the criteria set out within s 60CC of the Family Law Act.

Best Interests of the children – primary considerations

The eldest child C does not presently have a meaningful relationship with the mother. That was the situation when the matter was formerly considered by Justice Ryan and it remains the case now. Unfortunately, it is unlikely that that situation will change in the near future.
Regrettably, the middle child S also does not presently enjoy the benefit of a meaningful relationship with her mother. The relationship between them was in the early stages of disrepair when the matter was formerly considered by Justice Ryan, but that process continued to evolve to the point of a breakdown in the relationship in March 2009. The Family Consultant was very guarded about the prospects of that relationship being reconciled in the near future.
The present lack of a meaningful relationship between the mother and either C or S has little relevance to the determination of the relocation issue at hand. Although the Family Consultant was prepared to concede that the relationships between the mother and the two eldest children would be more difficult to recover if there was a much greater distance between their households, it is not a compelling feature of the case. Those relationships have unfortunately disintegrated even though the mother has lived in close proximity to the household of the father and the children. The evidence persuades me that even if the father and children remained living in this area, the two eldest children would not reconcile their relationships with the mother anytime soon.
Unlike her older siblings, the youngest child J does continue to enjoy a meaningful relationship with the mother. The relationship is important to J and it ought be permitted to flourish, subject to implementation of safeguards that will act as a bulwark against the mother’s behaviour causing emotional abuse to J.
Although the relocation of J from New South Wales to Victoria would introduce some practical impediments to the continuity of the time she would spend with the mother, provided those impediments can be satisfactorily overcome, the proposed relocation will not disturb the relationship that J continues to enjoy with her mother.
The need to continue J’s protection from the risk of psychological harm caused by the mother’s behaviour remains a very real concern. That risk does not arise by J’s subjection or exposure to abuse, neglect or family violence. Rather, the risk of harm to her arises by reason of her exposure to the mother’s pronounced enmity towards the father, which the mother displays in her overt denigration of the father and her interrogation of the children about aspects of their life concerning their father.
There is no reason to think on the evidence that such behaviour on the part of the mother has abated. On the contrary, the evidence tends to demonstrate that such behaviour is just as prominent now as it ever was. The evidence warrants a finding that the mother continues to suffer from Borderline Personality Disorder, and in the absence of the mother’s recognition of that diagnosis and her acceptance of therapy to overcome it, there is little prospect of improvement in her behaviour. The time spent by J with the mother, and the manner in which she communicates with the mother, must continue to be managed with the risk posed by the mother’s behaviour kept in mind.

Best interests of the children – additional considerations

The children are now aged 16 years, 13 years and 8 years respectively. C and S now have sufficient emotional maturity to express views which should carry considerable weight. That was the opinion of the Family Consultant, and I accept it.
The current parenting orders do not require C to spend time or communicate with the mother. That is his expressed wish. Neither party, nor the Independent Children’s Lawyer, proposes any change to orders in relation to C, irrespective of whether relocation is permitted.
The likelihood is that if S was compelled to spend time with the mother against her wishes she would simply run away. Forcing S to spend time with the mother in those circumstances would be counterproductive.
J’s views have not been infected by the attitude of her elder siblings. She wishes to continue spending time with the mother, and in fact expresses a desire to spend even more time with her. Although only 8 years of age, J’s views should carry some weight, but she is insufficiently mature for her expressed views to be an overriding feature in the determination of appropriate parenting orders. Her views simply need to be weighed with other considerations.
The father has a willingness and ability to facilitate a continuing relationship between J and the mother. The mother was critical of the father’s perceived role in the disintegration of her relationship with each of the two eldest children. The evidence, however, does not support the validity of the mother’s perception. The findings of Justice Ryan were that the relationship between C and the mother failed for reasons other than the father. Justice Ryan also made findings about the reasons behind S’s faltering relationship with the mother, which findings were endorsed by the Family Consultant in her updating report prepared for the purposes of these proceedings. The failure of S’s relationship with the mother was not due to the behaviour or attitude of the father, so far as the Family Consultant was concerned. I accept the evidence of the Family Consultant.
The evidence shows that, despite S’s failing relationship with the mother, the father continued to facilitate that relationship by encouraging S to spend time with her mother. That encouragement even continued beyond the point at which the father thought it necessary to write to the mother in February 2009 setting out his concerns about S. He continued to ensure that S spent time with the mother in compliance with parenting orders. It was only when S’s relationship with the mother completely broke down in March 2009 that the father ceased encouraging S to see her mother. Had he done so beyond that time, I accept that he would have risked compromising his own relationship with S, such was her opposition to spending further time with the mother.
J has continued to spend time with the mother in accordance with the existing parenting orders without interruption. That fact neatly demonstrates the father’s commitment to the facilitation of the relationship between J and the mother, because he has encouraged it to continue despite the entrenched views of the elder siblings. I accept the submission that J’s relationship with the mother would likely have now been showing signs of strain if it were the case that the father was not encouraging continuity of the relationship.
I find on the evidence that, despite her hostility towards the father, the mother is willing and able to facilitate the continuing relationship between J and the father. I am not satisfied that the mother encourages that relationship, but she does not actively thwart its continuation. She proposes that J continues to live with the father. At the very least, that proposal acknowledges the need for a continuing relationship between J and the father.
Relocation of the children from New South Wales to Victoria would necessarily cause their geographic separation from the mother. That would have a negligible effect upon C and S in their current states of mind. Conversely, geographic separation from the mother would have a much more marked effect upon J. The question is whether that proposed change could be managed in a way that any potential adverse effect upon J is satisfactorily marginalised. Unless it can be, the best interests of J would tend to militate against relocation.
The relocation to Victoria would give rise to practical difficulty and expense in J spending time with the mother. Presently she spends each alternate Saturday with the mother for a period of seven hours during the day. It would be impossible to preserve that regime in the face of her relocation from New South Wales to Victoria.
I have already adverted to the alternate arrangements proposed by the father, which he contends would satisfactorily compensate for the change in residential location. The Family Consultant was not attracted to the father’s initial proposal, but considers his amended proposal to be a satisfactory compromise, such that the relationship between J and the mother would not be the subject of impingement. Curiously enough, the mother is most enthusiastic about the father’s proposal insofar as it alters the regime of time that J would spend with her.
The mother’s only objection to the father’s proposal for relocation is the fact that the children would then be living in Victoria, which physical separation she fears would increase the prospect of J’s alienation from her, and hinder recovery of her relationships with C and S. It logically follows from the mother’s stated position that, provided the Court is not persuaded that the relocation will elevate the risk of alienation, there is no real impediment to the relocation. The arrangements for J to spend time with the mother in those circumstances actually meet with her approval.
I am satisfied on the evidence that, in the event of relocation, continuity of the relationship between J and the mother requires that they spend time together for short periods in each of the school holidays, and also on one occasion during each of the four school terms. Their relationship requires that level of frequency in their interaction. That is the opinion of the Family Consultant, which I accept.
Adherence to that regime of interaction between J and the mother would entail considerable financial commitment. The father tendered, as Exhibit F2, documents evidencing his research on the internet about the cost of implementing the time to be spent by J with the mother in accordance with his proposals. Because of her tender age, J is unable to travel unaccompanied on Jetstar aircraft between Melbourne and Newcastle. She would be able to travel unaccompanied on Virgin Blue aircraft on the same route at slightly extra cost.
Obviously, it would be cheaper for J to travel unaccompanied between Victoria and NSW to spend time with the mother in the event of relocation. However, the relationship between the parties remains fraught with difficulties. They are still unable to communicate with one another, and for the time being, communication between them is acutely restricted by the terms of a Final Apprehended Violence Order. The Family Consultant believes that their interaction ought be avoided, or at least minimised, and so she recommends continued use of the W Children’s Contact Service for changeovers. That is the arrangement under current orders. Mandated use of the Contact Service for changeovers would preclude J travelling between States unaccompanied on aircraft, because she would need to be conveyed between the airport and the Contact Service.
Even if changeovers were to occur by the parties’ collection of J at the airport on her disembarkation in each direction, so that she could travel unaccompanied and thereby avoid incurring the cost of airfares for the father as an accompanying parent, eight separate return airfares for J alone during the course of a year would still represent a financial impost.
Nevertheless, the contents of Exhibit F2 demonstrate that the father is capable of careful research and planning. The cost of flights is significantly reduced the further in advance of the flight that tickets are booked. If required, I am satisfied that the father would be able to make timely booking arrangements so as to avail himself of the pricing discounts that then apply.
The father’s gross salary is slightly in excess of $1,000.00 per week. He additionally receives a small amount of child support from C’s father, and a negligible amount of child support from the mother. The father considers that his income is sufficient to cover the costs of flights for both himself and J between Melbourne and Newcastle.
By comparison, the mother’s financial circumstances are parlous. She will cease receiving a Disability Support Pension once she begins cohabitation with Mr D. From that point, Mr D’s income will be used to support both himself and the mother. Having regard to the evidence given by Mr D, I am satisfied that the mother would have the capacity, with Mr D’s support, to make some modest financial contribution to the expense that would be incurred in ensuring that J spends time with her.
There is no doubt that the father has the capacity to provide for all of the physical, emotional and intellectual needs of all of the children. He has been doing so for quite some time.
Conversely, the mother does not have the capacity to provide for the emotional needs of C and S. But for the lack of that capacity, her relationship with each of those children would likely still be intact. The evidence of the Family Consultant is that there remains a concern about the mother’s capacity to continue sustaining J’s emotional needs into the future. However, provided that the amount of time spent by J with the mother is kept in check, the Family Consultant considers that the mother does have the capacity to meet J’s emotional needs during short and reasonably regular visits.
It is apparent from the evidence that the issue of relocation will probably, if not inevitably, arise at some point in the future of this family. That is because of the lack of tenure that the father now has at the Newcastle branch. Even if the Court determines to preclude the father’s currently proposed relocation, there is every chance that the issue of relocation will arise again at some point by reason of A Organisation imposing a compulsory move upon the father. By electing for a voluntary move at this stage, the father averts the potential for an involuntary move at a later date. The prospect of further litigation therefore exists should the father’s present application for relocation be refused. Approval of the current application for relocation would decrease the prospect of future litigation associated with a compulsory change of residence directed for the father by A Organisation.

conclusion

The father is desirous of the relocation from New South Wales to Victoria. It seems that C is strongly supportive. Although I am not persuaded on the evidence that S is as strongly supportive of the move as C, I am satisfied that she is quite content with the idea of relocation. I am not satisfied that the relationship of the mother with either of those two children will be further compromised by the relocation, or that the prospective recovery of those relationships by the mother is materially impaired by the relocation.

I accept the submission of the Independent Children’s Lawyer that the breakdown of the relationship between S and the mother is unsurprising, given the mother’s Borderline Personality Disorder, her lack of insight about the manner in which her behaviour affects the children, and her failure to submit to therapy. In the circumstances, I accept the Family Consultant’s recommendation that in the future any further time spent by S with the mother should be at the discretion of S, just as is the case for C.
Contrary to the belief of the mother, and the submissions of her counsel, I accept the genuineness of the father’s motives for the proposed relocation. Not only do the father’s reasons seem honest, they are reasonable. I reject the submission that the reasons advanced by the father for the relocation are a ruse. I reject the submission that the father is intent upon entrenching the alienation between the mother and the two eldest children, or upon causing alienation between J and the mother.
The father asserts that he would be devastated if the Court prohibited the relocation. I think it more likely that the father would be very disappointed by such an outcome, but that it would be hyperbole to describe his feelings in any stronger terms.
The mother has offered two reasons why she could not contemplate moving to Victoria to ensure her geographic proximity to the children. Firstly, she is not enamoured of the Melbourne climate, and secondly, she intends to marry Mr D and he has no interest in relocating.
Mr D is an important figure in the life of the mother, just as the father’s parents are important figures in his life. If the mother declines to relocate because of her relationship with Mr D, she cannot be reasonably heard to criticise the father for wishing to relocate to be nearer his parents.
The Independent Children’s Lawyer supports the father’s wish to relocate with the children to Victoria. The Independent Children’s Lawyer considers that the alternate proposals for J to maintain contact with the mother will permit retention of the meaningful relationship between J and the mother. I agree that the evidence permits that conclusion. That is the opinion of the Family Consultant. I am satisfied that the proposals for J to continue spending time with the mother, and to commence communication with her by telephone, are a satisfactory alternative to the existing parenting orders. If that alternate regime is implemented, I do not expect that the relationship between J and the mother will be interrupted or impaired, at least by reason of the relocation.
J is ostensibly content with the idea of relocation from New South Wales to Victoria, but I accept the evidence of the Family Consultant to the effect that J is not really cognisant of the repercussions of such a move.
On the whole, relocation to Victoria is in the best interests of the children. It is almost certainly in the best interests of C, and probably in the best interests of S. The circumstances do not permit as clear a conclusion in respect of J but, on balance, I am persuaded that her best interests are also met by the relocation. It is certainly better for her to remain living with her older siblings. It would certainly not be in her best interests to commence living with the mother, separately from her siblings, even if that was the mother’s desire.
It is not desirable that the regime for J and the mother spending time together should entail a mixture of responsibility for travel. The Family Consultant was of the view that the new regime should be as simple as possible, so as to avoid the potential for argument between the parties, and that a Contact Service should be retained for changeovers as an element of that regime.
The father proposed that the mother travel to Melbourne periodically and that they then use the C Children’s Contact Service for changeovers. There was no reliable evidence before the Court that that or any other Contact Service in Melbourne was an available, suitable or convenient venue for changeovers.
The present arrangements for use of the W Children’s Contact Service in NSW are working for the parties. Simplicity and proven reliability dictate that that venue should be retained. That will mean that J will need to travel to Newcastle to spend time with the mother, rather than requiring the mother to travel to Melbourne for that purpose at any time. I therefore accept the proposal of the Independent Children’s Lawyer and reject the proposal of the father in that regard.
I find that it is reasonable to expect the mother to make a nominal financial contribution to the expense that will be incurred by reason of J travelling from Victoria to New South Wales to spend time with her. The father should not be expected to bear the entire financial burden. Although it is only by reason of the father’s wish to relocate to Victoria that that extra expense will be incurred at all, in the parenting orders she has proposed, the mother has foreshadowed a willingness to make some form of financial contribution.
Implementation of the time to be spent by J with the mother should not be made conditional upon the mother’s financial contribution, for otherwise J and the mother will miss out on time being spent together in the event of the mother not making her timely financial contributions. That is the submission of the Independent Children’s Lawyer, which I accept. The requirement for the mother to make financial contributions will however be an enforceable order.
In accordance with the request of the Independent Children’s Lawyer, I have made an order compelling the father to ensure that J is promptly provided with counselling in the event of any indication that her relationship with the mother is at risk of breakdown. It is proper that such a precaution be taken, given what has already occurred with C and S. As the residential parent, the father should bear the expense of that counselling.
The father proposed an order in his Application phrased in terms which solicits the Court’s permission for him and the children to relocate their residence to Melbourne, Victoria.[35] I do not regard an order framed in those terms to be a proper exercise of power, or alternatively, appropriate.
[35] Initiating Application filed on 10 August 2009, Order 1
An order in those terms is not a parenting order within the meaning of s 64B of the Family Law Act, nor is it a mandatory or restrictive injunction under ss 68B or 114 of the Act. The nature of the orders that may be made by the Court within the ambit of power found in those provisions of the Act was discussed by the Full Court in Sampson v Hartnett (No 10) (2007) FLC 93-350.
Rather than being the subject of a specific order itself, the freedom of the father and children to relocate to Melbourne is a consequence of parenting orders that are made dealing with the time that J will spend with the mother. Those parenting orders will accommodate the residence of the father and children being located such a substantial distance away from the residence of the mother.
I have framed the orders in general terms, altering the previous orders made by Justice Ryan only in the event that the father and children locate their residence to a place more than 200 kilometres from the residence of the mother. It is only when the distance between households exceeds that range that the existing orders of Justice Ryan become practicably unworkable. If the father and children remain within that range of the mother then Justice Ryan’s orders prevail. If the father and children relocate beyond that range, and the mother later chooses to follow them, then Justice Ryan’s orders will again prevail.
The orders that I have made reflect the opinions and recommendations of the Family Consultant, which I accept, and otherwise draw upon the proposals of the Independent Children’s Lawyer and father.
I am satisfied that the orders set out at the beginning of this judgment are in the children’s best interests.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate:

Date: 15 October 2009

[2009] FamCA 974

15 October 2009

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