Samuel & Walton
[2024] FedCFamC2F 1525
•30 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Samuel & Walton [2024] FedCFamC2F 1525
File number(s): PAC 4037 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 30 October 2024 Catchwords: FAMILY LAW – PARENTING – Relocation – Best interests of child. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60DE, 61D Cases cited: Banks & Banks (2015) FLC 93-637
Grainger & Grainger (No 3) [2024] FedCFamC1F 470
Jollie & Dysart [2014] FamCAFC 149
Tibb v Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 135 Date of hearing: 8-10 October 2024 Place: Parramatta Counsel for the Applicant: Mr Friedlander Solicitor for the Applicant: Fletch Law Counsel for the Respondent: Ms Druitt Solicitor for the Respondent: Mark Brown & Associates ORDERS
PAC 4037 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SAMUEL
Applicant
AND: MS WALTON
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 OCTOBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The mother and father have equal shared parental responsibility in consultation with each other for making decisions about the long-term care, welfare and development of the child X born in 2016 (“the child”).
2.The mother’s application that she be permitted to relocate the child’s residence to the Suburb C area of Region B, NSW is dismissed.
3.The child shall live with the mother.
4.The child spend time with the father as follows:
(a)During school term:
(i)Each alternate week from the conclusion of school on Thursday until 9.00 am the following Monday, recommencing the first Thursday following the school holiday period.
(b)For half of each school holiday period as agreed between the parties in writing, or in the absence of agreement, as follows:
(i)During short (or mid-year) school holiday periods:
A.For the first half of school holiday periods in even numbered years, from 5.00 pm on the final day of the school term until 5.00 pm on the middle Saturday of the school holiday period;
B.For the second half of school holiday periods in odd numbered years, from 5.00 pm on the middle Saturday of the school holiday period until 5.00 pm the day immediately before the child’s first day of school term.
(ii)During summer school holidays commencing in 2024 and each alternate year thereafter:
A.From 5.00 pm on 17 December or 5.00 pm on the final day of the school term (whichever is later) until 12.00 noon on 25 December, and;
B.From 12.00 noon on 8 January until 12.00 noon on 22 January.
(iii)During summer school holidays commencing in 2025 and each alternate year thereafter:
A.From 12.00 noon on 25 December until 12.00 noon on 1 January, and;
B.From 12.00 noon on 15 January to 12.00 noon the day immediately before the first day the child is required to attend school.
5.In the event the child is not otherwise spending time with the father pursuant to these Orders, the mother’s time with the child shall be suspended, and the child shall spend time with the father on the following special occasions:
(a)In any even-numbered year where Easter falls outside of the school holiday period, from 5.00 pm Holy Thursday to 5.00 pm Easter Sunday;
(b)From 5.00 pm the Friday immediately before Father’s Day to 5.00 pm Father’s Day each year;
(c)For any time during the school term pursuant to these Orders that falls immediately before or immediately after a public free day or public holiday, that time be extended by 24 hours to incorporate that public free day or public holiday;
(d)Other special occasions as agreed in writing between the parties, and the mother shall not unreasonably withhold consent for the child to attend special occasions with the father.
6.In the event that the child is not otherwise spending time with the mother pursuant to these Orders, the father’s time with the child shall be suspended, and the child shall spend time with the mother on the following special occasions:
(a)In any odd-numbered year where Easter falls outside of the school holiday period, from 5.00 pm Holy Thursday to 5.00 pm Easter Sunday;
(b)From 5.00 pm the Friday immediately before Mother’s Day to 5.00 pm Mother’s Day each year;
(c)Other special occasions as agreed in writing between the parties, and the father shall not unreasonably withhold consent for the child to attend special occasions with the mother.
7.Changeover that does not occur at school shall occur at D Street Shops, Town E.
8.Each party shall:
(a)Keep the other advised at all times of their residential address and residential telephone number and emergency contact number;
(b)Notify the other party if going on holiday outside of New South Wales of a contact telephone number;
(c)Ensure that they make available to the other, a current telephone number, Skype account or Facetime account on which the other party can contact the child during times referred to herein, or for emergencies and that during such conversations, the parent with whom the child is residing shall ensure that the child has privacy to participate in such conversations and that parent shall not interfere with, or interrupt such conversations.
(d)Communicate with the other regarding the child via email except in the case of emergencies;
(e)Notify the other if the child is unwell or of any medication the child requires within 12 hours of such event via email;
(f)Notify the other of emergencies relating to the child via text message or phone call.
(g)Be permitted to attend any school, sporting or other extracurricular activity for the child in the nature of which parents are usually invited to attend.
9.Each party is restrained from denigrating or permitting any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the child.
10.Each party is restrained from physically chastising the child or allowing any other person to do so.
11.The father is restrained from driving past the mother’s residence.
12.Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the child to discuss with each parent the child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the child specifically and both parties shall be entitled to fully participate in any and all activities at the school or connected with the school.
13.Either party be permitted to travel outside the Commonwealth of Australia with the child, and in the event of proposed overseas travel:
(a)The travelling party shall notify the other party of an intention to travel at least 8 weeks prior to the departure date;
(b)At that time, the travelling party shall provide to the other party a printed itinerary and copy of return travel tickets for both the travelling party, and the child;
(c)At least one week prior to the departure, the travelling party shall provide to the other party a telephone contact number upon which the travelling party and child can be contacted, whilst overseas;
(d)If the travelling party is the father, the mother shall provide the child’s passport to the father at least two weeks prior to the departure date and the father shall return the passport to the mother within two weeks of return to Australia.
14.At the request of either of them and within a one-year period prior to the expiry of the child’s current passport, the parties shall do all things and sign all documents to cause a new passport to be issued for the child and:
(a)The parties shall share the cost of the passport equally;
(b)The passport shall be retained in the mother’s possession, subject to provision of it to the father, to enable travel, in accordance with the terms of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final hearing relates to the child X, born in 2016, currently aged 8 (“the child”).
Pursuant to interim orders made by a Senior Judicial Registrar on 30 November 2021, the child presently lives with the mother and spends time with the father four nights per fortnight during school terms and half of school holidays.
PROPOSALS
It was common ground that the parents should have equal shared parental responsibility for the child, albeit the mother sought an order that upon relocation (if permitted by the Court) the child be enrolled at a school of her choosing.
The father sought orders as set out in his Case Outline, inter alia, an injunction preventing the mother from relocating from the Suburb F/Region G area without his consent, and that the child spend time with him five nights per fortnight during school terms and half school holidays.
The mother sought orders as set out in her minute of order (Exhibit L), inter alia, that she be permitted to relocate to the Suburb C area of Region B, NSW with the child, and the child spend time with the father on alternate weekends from after school Friday to 5.00 pm Sunday, and for specified portions of each school holiday period. In the alternative, as set out in her Case Outline, if relocation were not permitted, she sought orders that the child continue to spend time with the father four nights per fortnight and half school holidays.
MATERIAL RELIED UPON
The father relied upon:
(a)Amended Application for Final Orders filed 31 July 2023;
(b)His affidavit filed 15 December 2023;
(c)Affidavit of Ms H filed 26 April 2023;
(d)His affidavit filed 4 October 2024;
(e)Affidavit of Ms H filed 4 October 2024;
(f)Notice of Risk filed 30 July 2021;
(g)Expert Report of Dr J dated 27 June 2023;
(h)Case Outline dated 14 December 2023 (not filed).
The mother relied upon:
(a)Amended Response to Initiating Application filed 28 July 2023;
(b)Her affidavit filed 26 September 2024;
(c)Affidavit of Ms K filed 31 July 2023;
(d)Affidavit of Ms L filed 7 February 2023;
(e)Affidavit of Mr M filed 20 December 2023;
(f)Expert Report of Dr J dated 27 June 2023;
(g)Notice of Risk filed 22 October 2021;
(h)Case Outline filed 4 October 2024.
The following documents became exhibits:
(a)Exhibit A: Father’s tender bundle of documents
(b)Exhibit B: Pages 26, 35, and 40 – 50 of mother’s first tender bundle filed 31.1.24;
(c)Exhibit C: Pages 165 – 167 (Current assessment of child support) of mother’s supplementary tender bundle (“MSTB”) filed 3.10.2024;
(d)Exhibit D: Pages 15 – 18 MSTB;
(e)Exhibit E: Photograph of the father standing;
(f)Exhibit F: Schedule of invoices relating to the N Company;
(g)Exhibit G: Pages 3 – 14 MSTB;
(h)Exhibit H: Pages 120 – 121 of the mother’s supplementary tender bundle (Credit Card Application);
(i)Exhibit I: Pages 136-162 of the mother’s supplementary tender bundle (Financial Statements of N Company for the FY2021-FY2023);
(j)Exhibit J: Pages 172 – 176 of the mother’s supplementary tender bundle (X’s school reports)
(k)Exhibit K: Residential tenancy agreement;
(l)Exhibit L: Mother’s proposed minute of order;
(m)Exhibit M: Affidavit of Dr J including annexures and a list of additional material sent to Dr J.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
The father and mother’s presentation whilst giving oral evidence was unremarkable. They both sought to answer questions responsively.
Evidence of the father
The Court does not propose to set out the entirety of the father’s evidence. He swore two affidavits and gave oral evidence.
The father stated he has had no mental health treatment for about the last 10 years. He stated he gave up smoking in about 2018 or 2019.
The father stated that he has been getting on well with the mother. In this context he stated that he used to do pickup and drop-offs for the child at her residence. He stated that they had a good co-parenting relationship. He stated that when the mother was in his presence he believed she felt comfortable.
The father stated that he does not drink alcohol excessively and nor does his partner.
The father denied that in the past he has had a very negative view of women. In this context he stated that he was raised by his mother and two sisters.
Evidence of Ms H, the father’s partner
The Court does not propose to set out the entirety of this witness’s evidence. She swore an affidavit and gave oral evidence.
This witness’s presentation whilst giving oral evidence was unremarkable. She sought to answer questions responsively. The Court found this witness to be an honest witness and accepts her evidence.
The witness works as an office worker. She has allied health qualifications.
She is the owner of the business N Company. The father works for her business and she also engages some casual labour.
She was asked whether she had ever seen the father angry to which she replied “not really”. She stated she has never had trouble with the father relating to physical violence. She stated she was aware of the father’s problematic behaviour in the past. When questioned in relation to the father’s anger, the witness stated that she has known the father for a long time and she has never been scared of him.
The witness stated that her income is now below $3,000 per week having experienced a reversal in fortune.
The witness stated that there has not been an occasion where she was concerned about the father’s alcohol consumption.
The witness stated that the amount of work in her business has slowed down quite a bit and there has been a real decrease in income. The business is doing less work for O Company and it is concentrating on sales.
The witness stated that she pays rent (for her residential premises) and that the father’s wage (usually) goes into paying this rent. Presently she stated that the father’s wages go to repay loans including loans for these proceedings.
The witness stated that the father is paid $660 per week for his work in the business.
Evidence of the mother
The mother swore an affidavit and gave oral evidence. The Court does not propose to set out the entirety of her evidence.
The mother stated that since separation she has visited the father’s residence. The father, since separation, has been to her residence, being to the front door, about three times.
The mother confirmed that changeover for the child for the school holidays had occurred at Town E, otherwise changeovers were at school.
The mother stated that the child enjoys playing sports. The children on the child’s sports team were not from his school. She stated that she was aware that the child was invited to birthday parties of his school friends, and she has attended some of those parties near Suburb P.
The mother stated that the child has been living in Suburb P since early 2022.
The mother confirmed that the last occasion when she alleged that the father acted adversely (allegedly staring at her previous boyfriend in a confrontational manner) was in mid-2018, some six years ago.
The mother confirmed that there was shouting between the parties during their relationship.
The mother stated that she could return to her previous work in health care if she so wished.
The mother stated that she was presently studying a trade. The fee for the course was $6,000 and she is paying that fee in instalments of $100 per fortnight. In her employment as a support worker she works with clients.
The mother stated that over the last 20 months the father was paying her $500 per month in payment of his share of the child expert’s fees.
The mother agreed that the father was making some significant contributions on a regular basis towards the child’s care.
The mother stated that the child has a good relationship with the father and loves him. She agreed the child has a good relationship with the father’s partner.
The mother stated that her partner has lived with her at Suburb P for last six months.
The mother stated that the father purchases the child’s school shoes each year and has purchased all his sports equipment.
The mother stated that she had lived with her partner at Suburb Q with the child from late 2020 for six months.
Evidence of the mother’s partner, Mr M
This witness swore an affidavit and gave oral evidence. The Court does not propose to set out the entirety of his evidence.
This witness’s presentation was unremarkable and he sought to give responsive answers to questions asked of him.
The witness stated in his affidavit that it is his desire to resume living in the Suburb C house as soon as possible so that he is close to his parents.
It was put to the witness that he is very negative about raising his child in parts of Sydney. He replied that from his experience he does not like that area of Sydney. He stated that he had lived in Suburb Q from 2016 and had seen things that he did not want his child R exposed to.
The witness stated that he lives with the mother at Suburb P and contributes $150 towards rent and pays for food.
Evidence of Ms K
This witness swore an affidavit and gave oral evidence. The Court does not propose to set out the entirety of her evidence.
Her presentation was unremarkable and she sought to give responsive answers to questions asked of her.
The witness stated that she had known the mother since about 1998 when she and the mother were in primary school together.
The witness gave evidence relating to an incident that occurred at a hotel in Town S in early 2013, over 11 years ago.
The witness stated that on the evening in question in early 2013 she had been drinking with the mother. She stated that she had been drinking before the incident for about two to three hours and that she generally drank spirits with mixers. She could not recall how many drinks she had had before the incident. She was not sure whether she continued drinking after the incident.
Evidence of Ms L
This witness swore an affidavit and gave oral evidence. The Court does not propose to set out the entirety of her evidence.
Her presentation was unremarkable and she sought to give responsive answers to questions asked of her.
This witness and the father had been living in a de facto relationship from about late 2018 until about late 2019. They had a child named T born in 2019. This child has been in the witness’s sole care since her birth. The father has no relationship with the child presently. (The Court observes that the parties’ relationship ended in about mid-2018, and that the father began his relationship with his present partner in about late 2019.)
The witness stated that the father had last seen T about four years ago. She had not advised the father which school this child attends.
The witness agreed that she doesn’t like the father.
The witness stated that the father pays child support for T but he was presently in arrears by about $800.
The witness agreed that she and the father had arguments during their relationship.
In relation to the witness’ allegations that the father had kicked her in the legs, she stated that the father would be standing and she would be sitting down. She alleged that the father kicked her after she reacted (adversely) to the father tickling her. In relation to these alleged kicking of her legs the witness stated that she had never attended a doctor or a hospital.
The witness stated that during arguments with the father she probably swore at him.
The witness stated that not less than four times per year she would speak to the mother with whom she was friends. She stated that she had become friends with the mother about one week after the birth of T.
The witness did not refute that she had sent a social media message to the father in about late 2019 in which she called the father a “fucking prick” and a “fucking asshole”. In that message she had abused the father, stating, inter alia, “Supportive of me and T [sic]? Im [sic] guessing shes [sic] the reason you had and have no care for us through my pregnancy. Go fuck yourself and tell your […] bitch to go fuck herself to [sic] don’t you dare think for a second she will ever meet my daughter.”
Family Report
The author of the Family Report dated 27 June 2023 was Dr J, Consultant Clinic Psychologist (“the Single Expert”).
The Court does not propose to set out the entirety of the Family Report or the entirety of the Single Expert’s oral evidence.
At paragraph 19, the Single Expert stated, inter alia:
Comment: It was evident from [Ms Walton]'s responses to questions about her relationships, and through descriptions she provided as to the relationships she had with her primary caregivers during her childhood, that her capacity for healthy intimate attachment has been profoundly impacted by her childhood experience. [Ms Walton] is a highly anxious woman, who is deeply insecure in close and intimate relationships as her experience of close relationships is that they are dominated by uncertainty.
At paragraphs 24 and 25, the Single Expert stated, inter alia:
24.When asked about the current care arrangements, [Ms Walton] indicated that she did not feel that they were feasible for her if they were to be ongoing. She stated that she believed if she was not able to return to live in [Region B] with [X], 'it would be at the cost of my relationship with [Mr M] and my happiness. I won't be at my best'. [Ms Walton] explained that she had met [Mr M] while living in [Suburb F], 'when he started talking about moving to [Region B], I was also ready to move out of the [area], I had been there such a long time'. She related that she, [Mr M] and [R] currently live at [Suburb C] on the weekends, and at [Suburb P] during the week. She stated that [Mr M] lived with her at [Suburb P] approximately three nights a week, 'he travels to [Suburb U] for work each day ... he doesn't want to live in [Suburb P]. I am miserable there too, I find it hard to be motivated and it makes me lose interest in life. I know this sounds dramatic but I just feel that way. I can't see a future in [Suburb F]’. [Ms Walton] reported that she was able to work in either [Suburb F] or [in Region B], as her role with [V Company] was flexible on location as it had [locations] all around Sydney.
25.[Ms Walton] reported that she felt strongly that she wanted to raise [X] and [R] in a location where she 'can go outside' and suggested that she believed [Region B] was 'great for this. It has [lots of outdoor activities], as well as bike and walking tracks'. When asked if she could do similar activities around [Suburb P] with walking and bicycle tracks, [Ms Walton] denied that she could, 'it's too hot'. When it was identified to her that [Town W] (and [Region G] in general) had extensive bicycle and walking tracks, [Ms Walton] replied that she could not return to [Town W] as she knew too many people and she had lived there too long, 'I would be under the microscope. Also, I wouldn't feel comfortable living somewhere near [Mr Samuel]. He's scared me and I still feel that he is imposing on me'.
At paragraph 26, the mother told the Single Expert, inter alia, that she felt that she may have no other option than to allow the child to live in the father’s primary care as she may lose her current partner and their child R if she did not agree to move to Region B. She had told the Single Expert that she did not think that she would be able to remain living in the Suburb F area as it was too expensive.
At paragraph 32 the Single Expert stated, inter alia, in relation to the mother’s psychological profile:
32.Throughout assessment, [Ms Walton] presented as a warm but highly anxious woman, who displayed signs of low confidence and impaired self-esteem. It was evident that she had a very close bond with [X] and cared for him deeply, however was in the untenably difficult position of being pressured to move away with her new young family. It was evident that she held little trust in [Mr Samuel], and continued to harbour some fear towards him as a result of their prior volatile relationship. To her credit, [Ms Walton] was able to acknowledge that [X] needed to have relationship with both parents and suggested that she was willing to facilitate this, although it was clearly evident that she did not know how. She was often distressed, and it was apparent that the current situation was placing her under considerable stress.
As to the child’s views, the Single Expert stated:
113.Throughout the interview [X] continually and quite confidently stated that he wanted to have more time in his father's care. During these requests however, it was evident that [X] was not asking for this because he preferred being in his father's care over that of his mother, but he simply wanted it to be fair and share his time equally between the homes. This is quite strong behaviour and a belief system often referred to as 'distributive justice' that dominate the developmental phase of middle childhood (ages 6 to 12years). He indicated clearly that he understood by spending more overnight time with his father he would be losing time with his mother, 'it would be bad and good. It would be good as I get lots of sleeps at Dad's house, but I would miss Mum and that would be bad', but despite this, was still adamant that he wanted to see his father more and spend greater time in his care.
Under the heading Formulation and Evaluation, at paragraphs 118 to 119 the Single Expert stated:
118.From her own account, it was evident that [Ms Walton] experiences chronic levels of anxiety in her intimate relationships, which was evident not only in her prior relationship with [Mr Samuel] but also in her current relationship with [Mr M]. The resultant impact of this anxiety on [Ms Walton], appears to have left her vulnerable to the influence of her intimate partners, and highly inclined to place herself and her own needs second to that of the man she is dating. This was evident in her relationship with [Mr Samuel] reporting her increased drug and alcohol use at that time because that was what he liked to do, 'he smoked a lot of pot and drank a lot of alcohol…I started smoking to be more on his level'. Similar evidence has been found in her current relationship, as from the start of their time together [Ms Walton] is considered to have been under significant pressure from [Mr M] to relocate away from the [Region G] area. This pressure was undisputable through the disclosures of [Ms Walton] and through the disclosures of [Mr M] during their individual interviews.
119.Of most concern, was that as a result of [Mr M]'s strong influence over [Ms Walton], she has found herself to be in the most untenable position of being forced to choose between her two young sons, having to decide whether to stay in [Suburb F/Region G] for [X] to continue to have ongoing substantial and significant time with [Mr Samuel] but in doing so risk the loss of her younger son, [R]. [Mr M] openly reported an adamant refusal to consider raising [R] in [Suburb F/Region G] and unashamedly stated that he will not consider this as an option for his son. Therefore, should [Ms Walton]'s request for [X] to relocate be refused by the Court, she is facing the very real likelihood of another Court application to prevent [Mr M] from relocating with [R] to [Suburb C] or having to choose between living with [R] or living with [X] - an outcome which would be unlikely to be in either child's best interests.
At paragraph 125 the Single Expert stated:
125.It is noted that throughout this assessment both [Mr Samuel] and [Ms Walton] expressed difficulty in providing clear future care arrangements for [X] due to the very real challenges that they face as a result of the increased distance between their preferred homes. As such, this has been a difficult matter to address. That being said, it is not recommended from this clinician that the Court place weight on viability or practicality of [Ms Walton]'s relocation proposal. Should [X] be allowed to relocate to [Region B] with [Ms Walton] and [Mr M], he will without doubt experience a diminishment in his relationship with his father which is not considered to be a positive outcome for [X]'s long-term development. On the basis of his independent interview, [X] and his father share a close, positive bond which is an essential component to [X]'s emotional, intellectual and emotional development as he moves thorough his childhood years. The role of [Mr Samuel] in [X]'s life is considered to be of utmost importance, and as such should be preserved.
The Single Expert made these comments in relation to the mother at paragraph 127:
127.It is strongly suggested that [Ms Walton] engage in psychological therapy to provide her with skills for improved assertiveness and resilience in her relationships, to help her to gain insight into her anxiety and fear-based behaviours in intimate relationships and to ensure she is able to adequately manage and stand up to the persuasive behaviours displayed by [Mr M] in their relationship. Overall, [Ms Walton] was found to be a dedicated, warm and loving mother, who's role in [X]'s life is imperative and should not be compromised due to her relationship with [Mr M] or for any other reason.
The Single Expert made these comments in relation to the mother’s partner at paragraph 128:
128.In addition, [Mr M] is strongly encouraged to work harder to understand the untenable position he is placing on his partner, and as an alternative to providing her with ultimatums, assist her to find workable compromises that allow her to be a loving and warm mother to both [X] and [R] as they mature through their childhoods. Furthermore, [Mr M] needs to be acutely aware that forcing [Ms Walton] into a position where one of her children may lose the chance to have substantial and significant time with their primary maternal caregiver is profoundly more damaging to the child than raising the child in a geographical region with which he shares an affinity.
The Single Expert made these comments at paragraph 130:
130.In sum, it is my opinion that the Court could weigh more favourably the option of [X] continuing to reside in the [Suburb P] area so as to preserve [X]'s current care arrangements as far a possible given the already challenging geographical distances involved. That said, [X] would benefit from being in a 50/50 shared care arrangement with [Ms Walton] and [Mr Samuel], which could begin immediately upon the parties finding suitable accommodation within reasonable distances of [X]'s designated school. Both parties should be informed that this arrangement should be conditional on remaining mindful of their living arrangements, ensuring that they are able to reasonably and reliably facilitate [X]'s travel between the houses and school in the future. Shared parental responsibility should be confirmed, as this is considered to be beneficial to all parties, but in particular for [X] throughout his development.
The Court asked questions of the Single Expert.
HIS HONOUR: Doctor, one – an impression the court gleaned from your report was that, and correct me if I’m wrong, it the court was to allow the mother to re-locate with the child to [Region B], you had a significant concern that the child’s relationship with the father could be adversely compromised?
WITNESS:I think it’s going to be diminished in time and, obviously, by virtue of that time loss, potentially diminished in quality. Yes.
…
HIS HONOUR: …The question is, is what the mother proposes in this minute of order in terms of the child’s time with the father sufficient in your view to maintain the child’s relationship with the father?
WITNESS:Not to the same extent that it is current, your Honour, and especially if – your Honour, as you just mentioned, the notion of extracurricular activities.
…
HIS HONOUR: All right. If the mother, hypothetically, was to offer greater time between the child and the father in the school holidays, compared to what she’s offering in this document, would that potentially be sufficient to maintain the child’s present relationship with the father?
WITNESS:It’s vexed, your Honour, in the sense that it is time that – that builds and time that maintains relationships. So with – with every reduction in that time, that – that relationship is – is significantly – or is – is impacted and, potentially, the more time lost, the greater the significance of the impact. I’m not sure I can assist further, but I think everybody, you know, at a local community and global level experience that across the periods of COVID to know what a profound impact restrictions of time have on many, many relationships. So I think the court can draw on its lived experience as well as impact on children of if they don’t spend time with the parent, then obviously that parent loses that parenting role, and those visits turn into more play visits. It just turns into a play date.
The Single Expert gave this evidence in relation to the wishes of the child expressed to the Single Expert at interview:
MR FRIEDLANDER: And having regard to the child’s voice – your words – in this particular case before the court, how important do you believe the child’s voice – namely, that he has repeatedly expressed that he would love to spend more time with his father – how important is that in this particular case?
WITNESS:It’s critical. I don’t – I – I’m sure the court doesn’t need me to point out the obvious, but it’s critical. The child needs a mother and a father. More importantly, the child does not need to be placed in such an invidious position of choice. The child deserves and warrants and, I believe, has a right to as much mother and as much father as any child can possibly have.
HIS HONOUR: Well, just pause there. If one assumes that the child’s repeated comments to you during interview that he would like to spend more time with the father are accurate, are genuinely held views by the child, bearing in mind the child, when he saw you was almost seven years, what weight should the court give to that particular view of the child? Some weight? Significant weight? Or what?
WITNESS:If the court is looking at a continuum from nought to 100, it would be well beyond the balance of probabilities, your Honour. It would be beyond moderate, beyond — you know, I’m not sure significant for a seven year old to be directing and being the architect of his future. I think that’s excessive, but I tried to clearly bring forward his voice and the manner in which he articulated that for the court to — to consider, and I think the court can be confident in the way in which this child expressed himself.
With respect to family violence, the Single Expert gave this evidence:
HIS HONOUR: Well, just pause there. If you assume that the mother’s allegations against the father of family violence during their relationship are correct, and if you assume that [Ms L]’s allegations of family violence against the father are true, does that change any of your opinions?
WITNESS:Not substantially, your Honour. It leaves me obviously concerned about the nature of his conduct. I’m mindful of his declaration of – of alcohol and [drug] use at that time. That can certainly fuel and exacerbate anger issues both in – in the presence of and withdrawal from either or both. And I’m mindful of his current partner’s statement that she has not seen such behaviour from him. So I’m certainly trying to take all of that into account, but - - -
HIS HONOUR: Because an – one impression from your report is that – in terms of the father’s behaviour post-separation to date, is that he has improved in terms of – for example, in terms of emotional regulation. I think you stated that, or words to that effect, in your report - - -?
WITNESS:That’s certainly- - -
HIS HONOUR: - - - that there has been some – correct me if I’m wrong – the impression the court had was that there had been some positive improvement in the father’s behaviour, including emotional regulation and maturity, in that regard?
WITNESS:Yes, and that – I - - -
HIS HONOUR: - - - since – post-separation to date. Is that a fair comment or not?
WITNESS:Yes. I think it is fair, and I think it goes hand in glove with his statement of – of reduction if not elimination of [drug use], which appeared to be in considerable quantities back then, his formation of an additional intimate relationship, and that things were far more positive for him.
The Court accepts the evidence of the Single Expert, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
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 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
Section 60CG of the Act requires the Court, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The Court has to consider each statutory matter in section 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93‑637 at [49]; Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations.
The Court refers to the discussion of relevant legal principles relating to relocation decisions in Grainger & Grainger (No 3) [2024] FedCFamC1F 470 by Schonell J including the following discussions:
134A relocation case is to be determined in the same way as any other parenting case, they are not a special category of case: Morgan v Miles (2007) FLC 93‑343 at [72]; Sayer v Radcliffe and Another (2012) 48 Fam LR 298 (“Sayer v Radcliff”) at [47]–[48].
135 The Full Court in Sayer v Radcliffe observed:
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
136However, the Court is not bound by those proposals in determining what is in the child’s best interests: U v U at [80].
…
140While the best interests of the child is the paramount consideration in the making of a parenting order, it is not the only consideration. Where one of the issues involves the relocation of a child’s residence, the legitimate desires, and the right of a parent to live where they wish is an important consideration.
141In a relocation case, a parent is not required to establish “compelling reasons” in support of the place of their chosen or proposed residence: AMS v AIF; U v U (2002) 211 CLR 238 (“U v U”). However, where that legitimate desire of a parent to live where they want conflicts with the child’s best interests such that the child’s welfare is adversely affected, then the right of a parent to choose where they want to live must give way to the paramount consideration: U v U at [89].
142In Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”), the Full Court explained the applicable law in these terms:
27.There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28.While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
The Court will consider the above considerations together.
Family violence and conflict
The mother makes allegations against the father of family violence during their relationship including coercive and controlling family violence. The father significantly denies these allegations. Again, the parties had a relationship of about six years from about August 2012 to May 2018; the parties have now been separated for over six years. On the balance of probabilities, the Court makes the following findings and observations in relation to these allegations:
(a)In early 2013 the father was excessively forceful in putting the mother into a taxi whilst the mother was resisting. The Court does not accept that he was holding the mother by her hair. The parties had been arguing for a short time before that occurred. On this occasion both parties were probably affected by alcohol (they had been drinking in a nearby hotel) and a recreational drug. The Court does not accept that the father hit the mother in the chest earlier in the hotel.
(b)In late 2015 the father was angry and in an emotionally dysregulated state drove his car at a speed which caused the mother to feel uncomfortable. (A short time earlier that evening the mother had become angry and emotional whereby she began to yell and scream at the father prompting the father to yell back and verbally abuse the mother). The mother, then pregnant, when in the car and whilst it was travelling slowly, had pulled on the handbrake to get out of the car and after the father disengaged the handbrake the mother had fallen from the car. The father stopped the car and picked up the mother and put her into the passenger seat. The Court does not accept that the father intentionally sought to cause the mother to fall from the car. A final ADVO was made in early 2016 for the protection of the mother against the father, after a provisional order had been made in early 2016. It was a 12 month ADVO being later reduced to six months. The mother had moved in to live with her mother in late 2015 and later returned to live with the father in early 2016.
(c)It is likely that during the parties’ relationship there was often conflict between the parties resulting in verbal abuse and yelling between the parties. A significant contributory cause was likely the father’s dysregulated emotional state and his propensity to exhibit anger, particularly when in conflict with the mother over an issue. The father often resorted to drug and alcohol consumption in a bid to control his heightened emotional state.
(d)The Court observes that in mid-2016 the mother had attended upon Y Centre and expressed concerns in relation to the father. In the view of the Court, the content of the two safety plans do not clearly indicate that the mother was reporting that the father had already perpetrated physical violence against her. In this context, the Court refers to its comments below in relation to paragraphs 27 and 29 of her affidavit.
15.Apart from the above findings, the Court does not accept on the balance of probabilities that the father otherwise perpetrated family violence, including alleged coercive and controlling family violence, towards the mother. The Court does not accept, on the balance probabilities, that the father perpetrated family violence against Ms L, although it is likely that the father and Ms L on occasion argued with each other and verbally abused each other.
16.The Mother alleges that she remains fearful of the father, particularly whilst remaining living at Suburb P. She contends that if she is permitted to relocate the child’s residence to Suburb C that her fearfulness (and related anxiety) of him will be ameliorated. The Court accepts that the mother probably harbours some fear (and related anxiety) towards the father due to their prior relationship often involving conflict, as discussed above. However, the nature and extent of such fear (and related anxiety) should be seen in the context of the following findings and observations:
(i)Since the parties’ separation in May 2018 to date, the Court finds that there has been no significant ongoing or regular conflict between the parties. The mother does not allege that changeovers for the child post-separation have been conflictual with the father. In her affidavit filed 26 September 2024, her last allegation of family violence against the father was in mid-2018, over six years ago.
(ii)The Court finds that the father has perpetrated no family violence against the mother post separation to date.
(iii)In 2023 the parties both attended a parent teacher interview relating to the child without conflict.
(iv)The parties have recently exchanged brief email messages relating to the child in a non-conflictual manner.
(v)During the mother’s interview with the Single Expert, the latter records at paragraph 23 of his report that the mother denied having seen any explosive anger in the father for many years.
(vi)During the mother’s interview with the Single Expert, the latter records at paragraph 26 of his report that at one point the mother stated that she would be willing to have an equal shared care arrangement for the child if the child indicated that he wanted to spend more time with the father. Ultimately, in summation, the Single Expert stated that the child would benefit from being in a 50/50 shared care arrangement with the parties, which could begin immediately upon the parties finding suitable accommodation within reasonable distances of the child’s designated school.
(vii)The mother seeks no restraining order relating to the father contacting her by email.
(viii)At paragraph 27 of the mother’s affidavit she states that following separation the father lived with his mother and even though the mother was concerned about the father’s use of an illicit substance, his unpredictability, and his temper, she felt that the child was safe in his care because his mother was also in the house. In paragraph 29 of her affidavit she refers to her concern about the father’s temper and being reassured for the child’s sake with the father’s new partner Ms H being present in the father’s household. It is not without relevance that the mother does not refer in this context to any concern about the father exerting physical violence.
(ix)The mother adduces no objective mental health professional evidence relating to her asserted fear (and related anxiety) of the father, albeit that the Single Expert does refer to the mother being an anxious woman.
(x)The mother does not allege that her parenting capacity for the child has been compromised by reason of her asserted fear (and related anxiety) of the father. In this regard, it is not without relevance that the mother and her partner have been considering a move to Region B since about the time that their relationship commenced in late 2020.
(xi)The mother seeks an order for equal shared parental responsibility; one can infer from this proposed order that the mother is content to communicate with and seek agreement with the father upon major issues to be decided for the child.
(xii)The mother proposes an order that each parent be permitted to attend any school, sporting or other extracurricular activity for the child.
(xiii)The mother proposes an order that changeover occur with the father at Suburb Z McDonald’s restaurant, albeit that the mother can nominate a nominee to collect the child from the father.
(xiv)Since the parties’ separation, the father has commenced a new relationship with Ms H and their relationship is positive. The Court accepts Ms H’s evidence that her relationship with the father is not characterised by any family violence or significant conflict. It is likely that the father has, post-separation, developed the ability to manage his emotions more effectively during times of stress, with the Court observing, inter alia, that the father has ceased his drug use.
The Court finds that the father poses no physical or psychological risk of harm to the child when the child is spending time with him. The Court refers to the evidence of the Single Expert in this respect.
The mother asserts that she often sees the father driving past her house on Thursday and Friday afternoons and Monday morning, presumably on a fortnightly basis when the father is either picking up the child from school or returning him to school, and becomes frightened and apprehensive by that occurring. To mitigate that occurrence, at the suggestion of the Court during submissions, the father informed the court that he would be prepared to abide by a restraining order preventing him from driving past the mother’s residence. It will be in the best interests of the child to make such a restraining Order.
Father’s alcohol and drug consumption
During the parties’ relationship, the mother states that the father generally drank alcohol, inter alia, one to two days per week. As to the father’s alcohol consumption since the parties’ relationship, in early 2020 he reported to his GP that he was drinking beer excessively on a daily basis albeit his mood was generally satisfactory. In late 2020 the father was on occasion drinking alcohol excessively, then suffering some depression, and was personally concerned about his alcohol consumption. The medical record for the father as at early 2023 records the father’s alcohol consumption as being three or four standard drinks, two to four times a month. The father produced negative hair analysis tests both for illicit drugs and alcohol in late 2022. His hair analysis test in early 2023 was negative for illicit drugs and his alcohol test result was positive being “low to moderate consumption” with the report stating that no further (alcohol) testing was necessary. The father’s partner, whose evidence the Court accepts, stated that there has not been an occasion where she was concerned about the father’s alcohol consumption. The Court is not persuaded that the evidence before the Court relating to the purchase of alcohol through the father’s partner’s business (both the father’s evidence in this regard and the evidence of his partner, including the documentary evidence) indicates that the father is likely imbibing alcohol excessively on a regular basis and thereby poses a risk of harm to the child or the mother. The Court finds that the father is probably not imbibing alcohol excessively on a regular basis and poses no risk of harm to the child or the mother in this respect.
The Court finds that the father presently does not use illicit substances on a regular basis, and has not used drugs since shortly after his separation in 2018. The Court refers to the father’s negative hair analysis tests discussed above.
The mental health of the parties
The father has been previously diagnosed with mental health conditions in 2007 and 2008, and in this regard the Court refers to Exhibit B. The mother refers to the father’s adverse behaviour when he punched some glass and injured himself in 2013. She refers to the father’s adverse behaviour towards her in 2013 near a hotel and being forced into a taxi, discussed above. She refers to his family violence against her during their relationship, and against Ms L during the period from December 2018 to September 2019, with the Court observing it has made findings above in relation to such alleged violence.
The father concedes his prior mental health difficulties and diagnoses. The father had treatment for his mental health for several years commencing at about the age of 24 at the AA Medical Centre including regular consultations with a psychologist, and ingested medication prescribed by his treating psychiatrist. This treatment continued until about age 27 in conjunction with his doctor’s advice at the time. Since that time he has not had any issues in relation to the previous diagnosis of a mental health condition.
In June 2018 the father reported to his GP anxiety and depression in the context of the breakdown of his relationship with the mother. He was counselled and prescribed medicine. In mid-2018 the father obtained a mental health-care plan from his GP and was referred to a psychologist for counselling and treatment of his depression.
The father was reporting some anxiety and depression to his GP in late 2020. He was prescribed medication to assist with sleep and to reduce alcohol consumption. He began to self regulate his drinking of alcohol and reduced it substantially.
The above considerations are probably neutral as to relocation.
(2)(b) any views expressed by the child;
The child loves both parents and probably wants to spend significant time with each of them. The Court gives some weight to his wish, stated to the Single Expert, to spend more time with the father.
The Court observes that the child has been making inconsistent statements to the mother as to where he wants to live in 2024 to date. For example, on 19 March and 20 July 2024 the child told the mother that he hates living with her, yet later stated to her on 11 September 2024 that he did not want to go to his father’s home anymore. The Court places no weight on the child’s statements to the mother or her partner about where he wants to live after his interview with the Single Expert.
The above consideration is probably neutral as to relocation.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
In respect to this consideration, the child has a need for both parents to maintain their close and positive bond with him so that his emotional and intellectual development can prosper.
The Court refers to the evidence of the Single Expert in this context. For example, at paragraph 125 and 127 of the Single Expert’s report he stated, inter alia:
125.That being said, it is not recommended from this clinician that the Court place weight on the viability or practicality of (the mother’s) relocation proposal. Should [X] be allowed to relocate to [Region B] with (the mother) and [Mr M], he will without doubt experience a diminishment in his relationship with his father which is not considered to be a positive outcome for [X]'s long-term development. On the basis of his independent interview, [X] and his father share a close, positive bond which is an essential component to [X]'s emotional, intellectual and emotional development as he moves through his childhood years. The role of (the father) in [X]'s life is considered to be of utmost importance, and as such should be preserved.
…
127.It is strongly suggested that (the mother) engage in psychological therapy to provide her with skills for improved assertiveness and resilience in her relationships, to help her to gain insight into her anxiety and fear-based behaviours in intimate relationships and to ensure she is able to adequately manage and stand up to the persuasive behaviours displayed by [Mr M] in their relationship. Overall, (the mother) was found to be a dedicated, warm and loving mother, whose role in [X]'s life is imperative and should not be compromised due to her relationship with [Mr M] or for any other reason.
This consideration probably militates against relocation because the child’s time with the father during school term times will likely decrease significantly if it is permitted.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The mother unilaterally relocated the child’s residence to Suburb C in mid-2021. It was not until 30 January 2022 that the mother, pursuant to a court order made on 30 November 2021 at the instance of the father, relocated the child’s residence back to Sydney (Suburb P). This unilateral relocation was not child focused.
The mother had unilaterally enrolled the child at BB School at Suburb P which was not child focused.
The mother lacks adequate insight into the significant risk of the child’s meaningful relationship with the father being diminished if she was to relocate the child’s residence to Suburb C and the child’s time with the father is reduced from four nights each fortnight during school terms to two nights each fortnight.
Otherwise, the mother has such capacities.
Whilst the father has attended various school events for the child in the past, including a parent‑teacher interview in 2023 (which the mother also attended), in 2024 he only attended the Father’s Day BBQ. He does attend the child’s usual sports games.
From June 2018 to March 2022, the father had only paid child support of about $3,850.
The father experienced some administrative difficulties relating to setting up and paying formal child support. Formal child support in the sum of about $47 per week was assessed in about July 2022. In February 2022 by email to the mother he offered to assist the mother financially for the child which was not responded to by the mother. The parties communicated by email in February and April 2023 and in which the father offered to assist the mother financially.
The father was assessed to pay child support to T, the child born to Ms L in 2019, in the sum of about $38 per month; he was overdue in this regard as at 12 April 2023 in the sum of about $1,134. He is the biological father of T.
In November 2023 the father commenced paying health insurance for his family including the child costing $225 per fortnight. He is presently assessed to pay $143 per month child support for the child. He is up to date with this child support. In addition he has been paying $106 per month to the mother to assist with the costs of the child’s psychology appointments.
When the father previously worked as a tradesperson (his last such work being in 2019) he was earning between $300 to $500 per day. He now works 20 to 30 hours per week as a permanent part-time employee of his partner’s business earning about $660 per week. The Court refers to the father’s partner’s evidence as to how the father’s wage is presently applied. His work entails, inter alia, site and safety management, training and other trades duties.
The Court does not accept that the father and/or his partner have misrepresented the father’s real work income. The Court does not accept that the father’s partner has failed to disclose and/or has misrepresented her business’s real financial position with a view to minimising the father’s payment of child support.
The Court does not accept that the father consumes alcohol excessively or that his present consumption of alcohol is unreasonably depriving the mother of reasonable child support. Even if it be the case, which the Court does not accept, that were the father to decrease his alcohol consumption he could pay significantly increased child support, as discussed below, the Court does not accept that the mother and her partner are not presently financially coping living at Suburb P.
Otherwise, the father has such capacities.
This consideration is probably neutral as to relocation.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship. The mother has been the child’s primary carer from birth to date.
The child has a meaningful relationship with the father. The child will benefit from a continuance of that relationship.
Since about October 2020 the child has been spending time with the father for four nights each fortnight. Since interim orders of 30 November 2021 the child has also been spending time with the father during the school holidays on an equal basis with the mother. Presently the father resides at Town CC and the mother lives in Suburb P. The mother wants to relocate the child’s residence to Suburb C in Region B.
As discussed further below, should the mother be permitted to relocate the child’s residence as proposed by her, the child’s time with the father will be significantly lessened because his fortnightly time with the child during school term times will be reduced from four nights each fortnight to two nights each fortnight; it would be impractical, if the child was living at Suburb C, for the father to spend time with the child on the fortnightly Thursday night. Should the child’s present time with the father during school term time be lessened, there is a significant risk that the child’s meaningful relationship with the father will be detrimentally affected.
The evidence of the Single Expert is consistent with the above views.
The Court gives significant weight to this consideration and regards it as particularly important, and which consideration does not support relocation.
(2)(f) anything else that is relevant to the particular circumstances of the child.
The Court now addresses, to the extent that it has not been previously addressed in the Court’s consideration of s 60CC factors, the advantages and disadvantages in respect to the relevant proposals of the parties.
Turning first to the mother’s proposals.
The mother alleges advantages to the child in her relocation proposal, inter alia, as follows:
(a)The mother and her partner’s present contended tenuous financial position will be ameliorated if relocation is permitted to Suburb C. However, the Court makes the following observations in this context:
(i)the evidence before the Court does not persuasively indicate that presently the mother and her partner are not financially coping remaining living at Suburb P, or that there is a significant risk that prospectively their financial position will worsen should they remain living at Suburb P.
(A)The mother works in part-time employment as a support worker (income effectively paid through the NDIS) earning some $39 per hour gross working about 20 hours per week. She has previously worked as an allied health worker with V Company and could return to this work if she chose.
(B)The mother’s partner owns his own small business providing support services to various clients and also has contracts with two companies. He works in the Sydney metropolitan area.He estimates his business is worth about $150,000.
(C)The mother’s partner owns three investment properties; the property at Suburb C (in relation to which the maternal grandmother contributed $150,000 towards the deposit for the purchase), a property at Suburb Q (which has three bedrooms), and a property at Town DD (which has three bedrooms) in Region G. His mortgage loan indebtedness relating to these three properties is some $2,150,000. The three properties are rented out. The Suburb C property has two separate accommodation sections; each section can be rented out to different tenants. In oral evidence the mother’s partner roughly guessed that the value of the three properties in total might be some $2,500,000.
(The Court has not overlooked that the mother currently rents her residence at Suburb P for $700 per week and that the Suburb C downstairs premises rents out for about $450 a week. Should the mother and her partner take up residence in those downstairs premises there would be a saving of $250 a week ($700 less $450), however the mother’s partner would then not be receiving $450 rent for those downstairs premises).
(D)The residence at Suburb P in which the mother, her partner, their child R and the subject child live is rented with the rent being $750 per week. The mother’s partner contributes $150 per week to that rent.
(E)The father’s formal child support is about $143 per month, however this sum is quite modest. He has been paying to the mother for the child, separately, some discrete payments for e.g. psychology appointments for the child (see the Court’s discussions above regarding child support).
(F)The mother drew down on her superannuation in 2020, $10,000, and a further $10,000 in October 2022, to help her with payment of day-to-day living expenses. The mother presently has about $26,000 in her superannuation fund. The Court observes that the mother has made no further drawdowns since October 2022.
(b)The mother’s partner’s extended family live in Region B. The child will be able to readily spend time with such extended family should relocation be permitted. However, the Court observes that the mother, her partner and the child visit her partner’s parents in Region B about every third weekend and, inter alia, do lots of outdoor activities as a family.
(c)The mother asserts that the lifestyle in Region B would be much better for the child and the family than that of living in Suburb P; she asserts that the weather in Region B is more mild, and there is easy access to beaches and walking tracks and reserves. The Court acknowledges that Region B would more readily provide access to beaches. The Court observes that Region G is available for walking tracks and reserves. The court observes that the mother stated herself that her family usually socialise with friends or family on the weekends both in Sydney and in Region B.
The Court observes that Dr J, at paragraph 41 of his report, stated, inter alia, that there was nothing found in the psychometric testing of the mother that would raise any concerns regarding her mental health or her current well-being (albeit that he stated that given the amount of stress the mother was currently under, she would benefit from psychological therapy to assist her to improve her confidence, reduce anxiety and assist her to be more assertive in her relationships with others in the future.)
(d)The child has developed a positive relationship with the mother’s partner’s parents who live in Region B.
(e)The mother’s partner has close friends in Suburb EE, about a half hour drive from Suburb C.
(f)The mother’s fear of the father (discussed above) will be ameliorated.
Even accepting that the mother is presently fearful of the father, to the extent alleged by her, the Court does not accept that relocation will so ameliorate that fear to any significant extent. Presently, with the father residing at Town CC and the mother residing at Suburb P (where the child attends school) the only regular face-to-face encounters between the parties is at changeovers at school holiday time at Town E. Otherwise, during school term times, changeovers occur at the child’s school when the mother is likely not present. On the mother’s proposal, on the other hand, if relocation is permitted, there will be face-to-face encounters between the parties at changeovers at McDonald’s Suburb Z twice each fortnight during school term times and also at the beginning and end of the father’s time during school holidays.
The Court should state at this point that it is not persuaded that should relocation not be permitted there is a significant risk that the mother’s anxiety will be exacerbated to such a degree that her parenting capacity for the child will be adversely compromised. In this context, the Court refers to its discussions above relating to the mother’s fear (and related anxiety) in relation to the father, including the absence of evidence that the mother’s parenting capacity for the child has been adversely impacted since separation whilst living with the child at Suburb P. Further, in this context, should relocation not be permitted, the Court is of the view that it is speculative to predict whether or not the mother’s partner will react adversely to the Court’s decision and cause the mother to experience an exacerbation of her anxiety such that her parenting capacity might be compromised.
The major disadvantage to the child on the mother’s proposal is the significant risk that the child’s meaningful relationship with the father will be adversely affected. The evidence of the Single Expert is consistent with this view. The Court would regard this issue as being a particularly important matter in relation to the proposed relocation. The Court now makes some comments in this context.
For about four years now, the child has been spending time with the father, during school term times, four nights each fortnight from Thursday after day care/school to before day care/school Monday morning (apart from the period between about July 2021 and late January 2022 when the child was living at Suburb C).
The mother is now proposing, if relocation is permitted, that the child merely spend, on a fortnightly basis during school term time, from after school Friday (noting that the child, on the mother’s proposal, would arrive at the changeover at Suburb Z McDonald’s at about 4.30pm on the fortnightly Friday during school terms) to Sunday 5.00 pm (noting that the father would have to leave Town CC with the child on the Sunday afternoon at about 3.30 pm to reach Suburb Z McDonald’s at 5.00 pm).
The mother’s proposal in this regard represents a significant reduction of the child’s time with the father during school term times and would effectively deprive the child of receiving any parenting input from the father regarding educational and other matters arising during his school week.
The mother’s proposal that the reduction in the child’s time with the father during school term times, on her proposal, can be effectively made up by increasing the child’s time with the father during school holidays does not, in the view of the court, adequately address the above deprivation of the child relating to the parenting input of the father during the school week.
The father alleges advantages to his proposal for, in particular, the child to spend time with him five nights each fortnight during school term times, inter alia, as follows:
(a)The father’s present meaningful relationship with the child can be maintained and enhanced. As discussed in these Reasons, there is force to this contention, subject to the issue of increased car travel for the child if his time with the father is increased to five nights each fortnight during school term time.
(b)The child will likely spend less time travelling in the car during school term time, compared to the likelihood of having to spend much more time travelling in the car if relocation occurs.
The Court observes that should relocation be permitted, on the mother’s proposals, the child, during school term times, spending time with the father each alternate week from after school Friday to 5.00 pm on Sunday, will require the child each fortnight to spend at least five hours in the car from Suburb C to Town CC and return (at least two and a half hours each way). The father gives evidence that it is quite possible that car travel between Town CC and Suburb C on Friday afternoons or Sunday afternoons could be significantly greater than two and a half hours each way if traffic is congested, which evidence the Court accepts.
The Court acknowledges that presently the child is spending considerable time in the car, during school term times in particular, travelling between Suburb P and Town CC in Region G, in order to facilitate his time with the father for four nights each fortnight, being a period of about four hours in total (with the Court accepting the father’s evidence as to travel time between Town CC and the child’s school usually taking about one hour). Nevertheless, the Court would assess there is a significant risk that if relocation is permitted, compared to the child’s present four nights each fortnight with the father resulting in about four hours car travel time per fortnight during school terms, the child’s time spent in the car each fortnight will significantly increase; the burden of such significant time spent by the child in the car each fortnight is not in his best interests.
The father seeks an increase of the child’s time with him during school term times; he seeks an increase from four nights each fortnight to five nights each fortnight. The Court has a significant concern that should such an increase be ordered the child’s present travel time in the car between Suburb P and Town CC would be significantly increased by at least two hours (one hour extra on the fortnightly Wednesday after school pick up and one hour extra on the fortnightly Thursday morning drop off at school), and he would have an extra early morning rise (being on the notional Thursday morning each fortnight) which would not be in his best interests, noting that he is presently spending a total of about four hours each fortnight during school term times in the car travelling between those places. In the view of the Court, the benefit to the child of spending one additional night each fortnight during school term time with the father is outweighed by the additional burden placed upon him of about 2 hours of extra car travel time if the additional night is ordered.
(c)The child will be able to more readily spend time with the paternal extended family who live in Region G.
(d)The child will be more readily able to maintain his present positive relationship with the father’s partner’s children being FF aged about 11 and GG aged about 6 years.
(e)The father will be more readily able to obtain information about the child’s schooling if attending changeovers at his school in Suburb P, including discussions with the child’s teachers. The father will be able to maintain friendships with the parents of the child’s school friends that he has formed since the child has attended school at Suburb P. The father will be more readily able to attend school events with the Court accepting the father’s evidence that he wants to have greater involvement in the child’s schooling, extra-curricular activities, sports and education. Practically, he will likely not be able to regularly attend the child’s school at Suburb C.
(f)The child’s present stability, routines, and school and sporting friendships can be maintained. The child has been living at Suburb P since February 2022. He has attended his school at Suburb P since kindergarten and is now in Year 2. Should relocation not be permitted, the child can continue to attend his current school where he is performing well. The child has been experiencing some emotional dysregulation in the school setting and his teachers at his current school have been liaising with the mother to address this issue. The child has had psychological treatment with a psychologist from about mid 2023 on a fortnightly basis until February 2024, and since that time has continued consulting with that practitioner monthly. Since late August 2024 the child has been attending weekly upon the school’s psychologist. The mother reports that the child’s behaviour at home has noticeably improved since about mid‑2024. There is a significant risk that should relocation be permitted, the child’s stability and routines in these above respects will be adversely affected; he will have to change schools, seek to form new friendships, potentially engage with new health professionals, and experience such changes in the context of spending less time with the father during school term times.
The Court would give significant weight to this advantage to the child of maintaining his present stability, routines, and school and sporting friendships.
(g)The child will be more readily able to maintain his present positive relationship with the maternal grandmother who lives in Town W. The mother’s brother also lives in Town W. The mother’s stepfather lives in Region G with whom the mother has a good relationship. The child has a good relationship with the mother’s brother and her stepfather.
The Court does not accept that the father could readily relocate to Region B. Inter alia, he works for his partner’s business which is based in Region G, and his partner’s children attend school in Region G. The father also has extended family in Region G.
Having regard to the Court’s above discussions both under s 60CC and in relation to the relative advantages and disadvantages applicable to each party for their respective proposals, the Court is of the view, on balance, that it will not be in the best interests of the child for relocation to be permitted. Again, a particularly important factor in this context is the significant risk of the child’s meaningful relationship with the father being significantly diminished. In reaching this view the Court has considered the legitimate desire and right of the mother to live where she wants, however that desire and right of the mother in this case conflicts with and must give way to the best interests of the child which is to, in particular, remain living where he now is.
Other proposed parenting orders sought by the father in his minute of order attached to his Case Outline, in particular proposed Order 3 (a restraint and injunction against the mother removing the child outside of the Suburb F/Region G area), and proposed Order 4 (the child remaining enrolled at his present school) were not agitated or meaningfully dealt with during the final hearing.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting orders:
1.The mother and father have equal shared parental responsibility in consultation with each other for making decisions about the long-term care, welfare and development of the child X born in 2016 (“the child”).
2.The mother’s application that she be permitted to relocate the child’s residence to the Suburb C area of Region B NSW is dismissed.
3.The child shall live with the mother.
4.The child spend time with the father as follows:
(a)During school term:
(i)Each alternate week from the conclusion of school on Thursday until 9.00 am the following Monday, recommencing the first Thursday following the school holiday period.
(b)For half of each school holiday period as agreed between the parties in writing, or in the absence of agreement, as follows:
(i)During short (or mid-year) school holiday periods:
A.For the first half of school holiday periods in even numbered years, from 5.00 pm on the final day of the school term until 5.00 pm on the middle Saturday of the school holiday period;
B.For the second half of school holiday periods in odd numbered years, from 5.00 pm on the middle Saturday of the school holiday period until 5.00 pm the day immediately before the child’s first day of school term.
(ii)During summer school holidays commencing in 2024 and each alternate year thereafter:
A.From 5.00 pm on 17 December or 5.00 pm on the final day of the school term (whichever is later) until 12.00 noon on 25 December, and;
B.From 12.00 noon on 8 January until 12.00 noon on 22 January.
(iii)During summer school holidays commencing in 2025 and each alternate year thereafter:
A.From 12.00 noon on 25 December until 12.00 noon on 1 January, and;
B.From 12.00 noon on 15 January to 12.00 noon the day immediately before the first day the child is required to attend school.
5.In the event the child is not otherwise spending time with the father pursuant to these Orders, the mother’s time with the child shall be suspended, and the child shall spend time with the father on the following special occasions:
(a)In any even-numbered year where Easter falls outside of the school holiday period, from 5.00 pm Holy Thursday to 5.00 pm Easter Sunday;
(b)From 5.00 pm the Friday immediately before Father’s Day to 5.00 pm Father’s Day each year;
(c)For any time during the school term pursuant to these Orders that falls immediately before or immediately after a public free day or public holiday, that time be extended by 24 hours to incorporate that public free day or public holiday;
(d)Other special occasions as agreed in writing between the parties, and the mother shall not unreasonably withhold consent for the child to attend special occasions with the father.
6.In the event that the child is not otherwise spending time with the mother pursuant to these Orders, the father’s time with the child shall be suspended, and the child shall spend time with the mother on the following special occasions:
(a)In any odd-numbered year where Easter falls outside of the school holiday period, from 5.00 pm Holy Thursday to 5.00 pm Easter Sunday;
(b)From 5.00 pm the Friday immediately before Mother’s Day to 5.00 pm Mother’s Day each year;
(c)Other special occasions as agreed in writing between the parties, and the father shall not unreasonably withhold consent for the child to attend special occasions with the mother.
7.Changeover that does not occur at school shall occur at D Street Shops, Town E.
8.Each party shall:
(a)Keep the other advised at all times of their residential address and residential telephone number and emergency contact number;
(b)Notify the other party if going on holiday outside of New South Wales of a contact telephone number;
(c)Ensure that they make available to the other, a current telephone number, Skype account or Facetime account on which the other party can contact the child during times referred to herein, or for emergencies and that during such conversations, the parent with whom the child is residing shall ensure that the child has privacy to participate in such conversations and that parent shall not interfere with, or interrupt such conversations.
(d)Communicate with the other regarding the child via email except in the case of emergencies;
(e)Notify the other if the child is unwell or of any medication the child requires within 12 hours of such event via email;
(f)Notify the other of emergencies relating to the child via text message or phone call.
(g)Be permitted to attend any school, sporting or other extracurricular activity for the child in the nature of which parents are usually invited to attend.
9.Each party is restrained from denigrating or permitting any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the child.
10.Each party is restrained from physically chastising the child or allowing any other person to do so.
11.The father is restrained from driving past the mother’s residence.
12.Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the child to discuss with each parent the child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the child specifically and both parties shall be entitled to fully participate in any and all activities at the school or connected with the school.
13.Either party be permitted to travel outside the Commonwealth of Australia with the child, and in the event of proposed overseas travel:
(a)The travelling party shall notify the other party of an intention to travel at least 8 weeks prior to the departure date;
(b)At that time, the travelling party shall provide to the other party a printed itinerary and copy of return travel tickets for both the travelling party, and the child;
(c)At least one week prior to the departure, the travelling party shall provide to the other party a telephone contact number upon which the travelling party and child can be contacted, whilst overseas;
(d)If the travelling party is the father, the mother shall provide the child’s passport to the father at least two weeks prior to the departure date and the father shall return the passport to the mother within two weeks of return to Australia.
14.At the request of either of them and within a one-year period prior to the expiry of the child’s current passport, the parties shall do all things and sign all documents to cause a new passport to be issued for the child and:
(a)The parties shall share the cost of the passport equally;
(b)The passport shall be retained in the mother’s possession, subject to provision of it to the father, to enable travel, in accordance with the terms of these orders.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 30 October 2024
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