Saville and Taft

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAVILLE & TAFT

[2016] FCCA 1195

Catchwords:
FAMILY LAW – Parenting – Relocation – The child living in an equal time arrangement since separation in Tasmania – The father moves to Canberra for employment – The father proposes that the child live in Canberra – The mother proposes the child live with her in Tasmania – Psychological evidence.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Family Law Amendment (Shared Parental Responsibility) Act 2006

Cases cited:
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Morgan & Miles [2007] FamCA 1230
Taylor & Barker [2007] FamCA 1246
Duggan & Duggan [2009] FamCAFC 115
Heaton & Heaton [2012] FamCAFC 139
Sayer & Radcliffe [2012] FamCAFC 209
Mazorski v Albright (2007) 37 FamLR 518
McCall & Clark (2009) FLC 93-405
R v R Children’s Wishes [2002] FLC 93-000

Applicant:

MR SAVILLE

Respondent:

MS TAFT

File Number:

HBC 357 of 2014

Judgment of:

Judge Baker

Hearing dates:

16 & 17 March 2016

Date of Last Submission:

17 March 2016

Delivered at:

Hobart

Delivered on:

27 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr Dixon of Senior Counsel

Solicitors for the Applicant:

Coote Family Lawyers

Counsel for the Respondent:

Mr Turnbull

Solicitors for the Respondent:

Ogilvie Jennings

ORDERS

All previous parenting orders be discharged.
Mr Saville (“the father”) and Ms Taft (“the mother”) have equal shared parental responsibility for the child X born (omitted) 2009 (“X”).
X live with the mother.
Unless otherwise agreed X spend time with the father as follows:
For one half of the first and third mid-term school holidays or as otherwise agreed between the parties;
For the entirety of the second term school holidays commencing on the first Saturday of the holiday period and concluding on the last Saturday of the holiday period or as agreed between the parties;
For the entirety of the Christmas/Summer school holiday period, save for two weeks X will spend with the mother, alternating over Christmas Day in odd years and in January in even years, or as agreed between the parties;
During school terms unless otherwise agreed:
Every fourth weekend (in a four week cycle) from the conclusion of school on Friday until the commencement of school on Monday, with such time to take place in Hobart; and
For up to four long weekends per annum during school terms from the conclusion of school Friday until Monday, at such times as agreed depending on flight availability, such time to take place in either Canberra or Melbourne or such other place as is agreed.
If Easter does not fall within the mid-term school holidays, from Good Friday until Easter Tuesday at times to be agreed;
At such other times as agreed between the parties.
X’s travel costs for the purposes of spending time with the father in school holiday periods shall be shared equally.
The mother shall pay one quarter of X’s travel costs and the father shall pay the balance for the weekends to occur in Canberra or Melbourne or such other place as agreed.
The mother shall be responsible for her travel costs and associated costs for the time referred to in order 6.
The father shall be responsible for his travel costs and associated costs when spending time with X in Hobart.
X have liberal telephone, Skype, email and text message communication with the father.
The mother keep the father informed of all X’s school activities and achievements and provide regular photographs to the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 357 of 2014

MR SAVILLE

Applicant

And

MS TAFT

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant father seeks to relocate the residence of the child X, born (omitted) 2009 (“X”), from Hobart to Canberra. This is opposed by the mother.

Background

The parties commenced cohabitation in (omitted) 1997. They married on (omitted) 2000 and separated on 4 November 2013.
X is seven years old and is in Grade 1 at the (omitted) School. The parties have equally shared X’s care since separation. This arrangement was formalised by consent orders on 15 July 2014.
The father is 40 years of age. He is employed full-time as (occupation omitted) with the (employer omitted). He commenced this position on (omitted) 2016. His employer allowed him to commute to and from Hobart to Canberra until 31 March 2016, when he worked in Canberra permanently.
The father has lived with his new partner, Ms J since December 2014. They have signed a lease for a three-bedroom house in Canberra.
The mother is 41 years of age. She works full-time as a (occupation omitted) with (employer omitted). In April 2015, she commenced a relationship with Mr R, who has a 12 year old daughter named A. A lives with her mother in Melbourne and visits Mr R regularly in Hobart. He currently lives predominantly with the mother and X at her house in (omitted). He also has a yacht which is permanently moored in (omitted). He stays on it one night each week. The mother said that they plan for Mr R to move into her house full-time. Over the most recent school holidays, A stayed at the mother’s house while spending time with her father.
Both parties are capable parents who have co-operated well to parent X. It is unfortunate that these proceedings have, not surprisingly, resulted in some tension between them. When this litigation has finalised, they should be able to return to their former easy-going and friendly parental relationship. I agree with the submission of Counsel for the mother that this was and is a “poster family” for collaboration and flexibility with a sense of friendship.

Issues

The issue to be determined is whether X should live in Canberra with the father or with the mother in Hobart. The mother has no desire to move to Canberra. However, her position was that she would have no choice but to move if the court determines that X should live with the father in Canberra.
The father asserted that due to the mother’s mental health, which he asserted will likely deteriorate; she will not have the ability to cope with X’s care in his absence as he is the necessary support for her with X.

Proposals

Both parties seek an order for equal shared parental responsibility for X. The parties proposals in detail are as follows:

The Father’s Proposals

X relocating to Canberra

That the Applicant Husband be permitted to relocate to Canberra with the child.
That the parties do all acts and things and sign all documents necessary for the child to be enrolled and attend grade 1 at (employer omitted) or any other school as agreed between the parties.
That in the event the Respondent wife elects to relocate to Canberra, the child lives equally with both parties as agreed between them.
That in the event the Respondent wife elects to relocate to Canberra, the Applicant husband pay or cause to be paid the following expenses on behalf of the Respondent wife:
a)All moving costs, including removalists, insurances and airfares incurred by the Respondent wife;
b)The Respondent wife’s rental costs in Canberra for the first 12 months of residence, provided that such sum does not exceed $450 per week;
c)The Applicant husband pay to the Respondent wife $15,000 by 30 April 2016;
d)For a period of three years, the Applicant husband will be solely responsible for the payment of four trips each year for the Respondent wife and the child to travel to Hobart, including economy airfares, accommodation and all other reasonable travel expenses;
e)The Applicant husband be solely responsible for the first full year of the child’s private school fees in Canberra, including school books, uniforms and agreed extra-curricular activities.
That in the event that the Respondent wife elects not to relocate to Canberra, the child live with the Applicant husband and spend time with the Respondent wife as follows;
a)Every fourth weekend during school terms from the conclusion of school Friday until the commencement of school Monday, with such time to take place at a serviced apartment with the parties to share the costs of that accommodation equally;
b)Every second weekend during school terms from the conclusion of school Friday until 4:00 pm Sunday, with such time to take place in either Hobart or Melbourne as nominated by the Respondent wife;
c)For half of all school holiday periods as agreed, with such time to take place in Hobart, Tasmania or at any other place nominated by the Respondent wife;
d)At such other times and places as agreed.
That the child have FaceTime or Skype time with the Respondent wife at least three times a week at such times as agreed between the parties.
That the costs of the child’s and the Respondent wife’s travel in order to facilitate the time proposed above, be borne 75% by the Applicant husband and 25% by the Respondent wife, by the most economical air travel possible.
Such further and other orders as this Honourable Court deems appropriate.

X residing in Hobart

That in the event that the child remains living in Hobart with the wife, the child spend time with the husband as follows:
a)During school terms:
i.Every fourth weekend (in a four week cycle) from the conclusion of school Friday until the commencement of school Monday, with such time to take place at a serviced apartment in Hobart with the parties to share the costs of that accommodation equally; and
ii.Every second weekend (in a four week cycle) during school terms from the conclusion of school Friday until 4:00 pm Sunday, with such time to take place in either Canberra or Melbourne or such other place as is agreed or nominated by the husband.
b)For half of all school holiday periods as agreed and failing agreement for the first half of the school holidays in even numbered years and the second half of the school holidays in odd numbered years.
c)At such other times and places as agreed between the parties.

11.That the child have FaceTime or Skype time with the husband at least three times a week at such times as agreed between the parties.
12.That the costs of the child’s and the parties’ travel in order to facilitate the time proposed in paragraph 9 be borne equally between the parties, by the most economical air travel possible.
13.Such further and other orders as this Honourable Court deems appropriate.

The Mother’s Proposals

X residing in Hobart

That X spend time with the Applicant father as follows:
a)In Canberra for one half of the first and third gazetted mid-term school holidays as agreed between the parties;
b)In Canberra for the entirety of the gazetted second term school holidays commencing on the first Saturday of the holiday period and concluding on the last Saturday of the holiday period as agreed between the parties;
c)For the entirety of the Christmas/Summer school holiday period save for two weeks for the mother which will alternate over Christmas Day in odd years and in January in even years as agreed between the parties;
d)For up to four long weekends per year during school terms to occur in Hobart or Canberra at the Applicant father’s election;
e)For up to four weekends per year during school terms to occur in Hobart or Melbourne as agreed between the parties from Friday evening until Sunday evening with the Applicant father to pay the costs of his travel and accommodation expenses and the Applicant father to pay the costs of X’s travel and accommodation if the time is to occur in Melbourne; and the Respondent mother to pay the costs of her own travel and accommodation if the time is to occur in Melbourne;
f)If Easter does not fall within the gazetted mid-term school holidays from Good Friday until Easter Tuesday at times to be agreed;
g)At other times as agreed between the parties.
That except as specified in paragraph 1(e) the Applicant father pay all travel and associated costs for the purpose of spending time with X.
That X have liberal telephone, Skype, email and text message communication with the Applicant father.
That the Respondent mother keep the father informed of all of X’s school activities and achievements and provide regular photographs to the Applicant father.

X relocating to Canberra and Mother in Hobart

That in the event X is permitted to relocate to Canberra with the father and the mother remains residing in Tasmania, X spend time with the Respondent mother as follows:
a)In Hobart for one half of the first and third gazetted mid-term school holidays as agreed between the parties;
b)In Hobart for the entirety of the gazetted second term school holidays commencing on the first Saturday of the holiday period and concluding on the last Saturday of the holiday period as agreed between the parties;
c)For the entirety of the Christmas/Summer school holiday period save for two weeks for the father which will alternate over Christmas Day in odd years and in January in even years as agreed between the parties;
d)For up to four long weekends per year during school terms to occur in Hobart or Canberra at the Respondent mother’s election;
e)For up to four weekends per year during school terms to occur in Canberra or Melbourne as agreed between the parties from Friday evening until Sunday evening with the Applicant father to pay the costs of his travel and accommodation expenses and the Applicant father to pay the costs of X’s travel and accommodation and the Respondent mother to pay the costs of her own travel and accommodation if the time is to occur in Melbourne;
f)If Easter does not fall within the gazetted mid-term school holidays from Good Friday until Easter Tuesday at times to be agreed;
g)At other times as agreed between the parties.
That except as specified in paragraph 5(e) the Applicant father pay all travel and associated costs for the purpose of the mother spending time with X.
That X have liberal telephone, Skype, email and text message communication with the Respondent mother.
That the Applicant father keep the mother informed of all of X’s school activities and achievements and provide regular photographs to the Respondent mother.

X relocating to Canberra and Mother residing in Canberra

That in the event that X is permitted to relocate to Canberra with the father and the mother elects to relocate to Canberra, X will live equally between the parties as agreed between them.

Evidence

The father relied on his Amended Initiating Application filed 29 February 2016; his affidavit filed 29 February 2016; and the affidavit of Ms J filed 29 February 2016.
The mother relied on her Response filed 28 August 2015; her Notice of Risk filed 28 August 2015; her affidavit filed 2 March 2016; the affidavit of Mr R filed 2 March 2016; the affidavit of Dr K filed 3 March 2016; and the Child Dispute Conference Memorandum to Court dated 3 September 2015.

The Evidence of the Parties

Both parties are pleasant and their demeanour in the witness box was the same.
This is not a matter in which I need to make findings of credit. I found that the father was an impressive witness who readily made concessions. Whilst the mother was less willing to make concessions readily, she did so after being pressed. Both parties were credible witnesses.
The partners of both parties are also pleasant and were helpful and credible witnesses.

The Canberra relocation proposal

The father said that when he applied for the position in Canberra, he was hopeful that the mother would also move due to her initial enthusiasm and encouragement.
His position is that it would be in X’s best interests to live in Canberra with him and to spend regular time with the mother. One reason for this is that he and X have a very close and loving relationship and that X has spent considerably more time with him than with the mother since separation.
Another reason to support his position is that his employment as an (omitted) gives him excellent flexibility on a day-to-day basis. He would be available to collect X from school every day so that he does not have to attend after-school care. In contrast, the mother has poor day-to-day flexibility as her job requires her to work in shifts. She has the ability to accrue extra time off work and to purchase extra leave. This gives her periods of time with X during holiday periods that would be unavailable to the father.
The mother’s position is that the father has readily moved three times for work and had discussed with her a further two moves since living in Hobart. She believes that he is focussing on his career aspirations rather than creating and maintaining a stable life and home environment for X. She does not believe that X will settle in Canberra if he moves and does not want X to be caught up in the “nomadic lifestyle”.
She is concerned about how X would cope in a new school, given his difficulties in adjusting to changes of environment. X has expressed to her a wish to stay living in Hobart with her and to remain at his current school with his friends.
The mother said that she has found it very difficult to face the possibility of an order that X relocate to live with the father in Canberra. If that order is made, she does not know that she would be able to remain in Hobart without him. She said that her relationship with X is the most important thing in her life and while she has some flexibility about her work hours, she does not have the flexibility to take enough time off to fly to Canberra to spend significant time with him. She receives a maximum of 4-6 weeks leave each year and can only take leave subject to others in her department taking leave. She also has (omitted) commitments to give (duties omitted) that she cannot miss or re-schedule.
The mother believes that she would be forced to move to Canberra if the father is allowed to relocate X there. This will force her to move to a more expensive city with no job where she does not know anyone. She would be leaving her friendships in Hobart and her relationship with Mr R. She is building a life with him. They have a number of future plans. These include buying a house, renovating properties, developing Mr R’s plot of land and possibly having another baby. She is unsure that she would be able to achieve this again in her life. She is fearful that if she is forced to move to Canberra to be with X, that would affect her mental state to such a degree that she would be unable to effectively care for him.
The mother believes the flexibility that the father has in his new position in Canberra can be used to facilitate an ongoing, significant relationship with X whilst he is living in Hobart with her. He will be able to travel to visit X more easily than her.

The Father’s proposal for X’s schooling in Canberra

The father proposed that X attend either (omitted) or (omitted) School in Canberra. An order by consent was made on 15 September 2015 to allow X to be placed on the wait lists for enrolment at these schools. The mother made enquiries with the schools and has been informed that X’s name has not been registered on either waiting list.
The father gave oral evidence that he mistakenly thought he had posted the applications and thought he had pre-enrolled X in these schools. Since it came to light that he had not done so, he has secured a place for him at (omitted) School.

Previous moves

The parties commenced their relationship in Brisbane in 1993. In 1997 they moved to Melbourne so the father could undertake a (studies omitted) at (omitted). The mother left her full-time job and moved with him because she wanted to continue her relationship with him. In (omitted) 1998, she obtained employment as a (occupation omitted) with (employer omitted).

In 2002 the parties moved back to Brisbane. The father obtained employment with the (employer omitted) as a (occupation omitted). The mother obtained employment at (employer omitted). The mother said that the father’s position at (employer omitted) was not on-going and he was facing unemployment. There was only the prospect of some (omitted) work in Queensland. She said that “despite loving my job at (employer omitted), I never felt quite at home in Melbourne and Mr Saville and I often talked about returning to Queensland”. She then looked into employment in Queensland with the (employer omitted) but was unable to gain a position. She raised her concerns with the father about leaving her position as a (occupation omitted) in Melbourne. She said, “Mr Saville and I argued about moving over a period of several months, with him becoming increasingly more insistent as time progressed”. She said that he pressured her into moving and changing her line of work. During cross-examination, she agreed “it was a joint decision to go back but not really at that time, but yes, it was a joint decision”. She also said, “the timing of the Melbourne to Brisbane move was not good for me at all”.
The father agreed that he was looking for more work. However, he said that the mother was the instigator of their move from Melbourne back to Queensland in 2002. She was unhappy in Melbourne and wanted to be in Brisbane, close to her parents.
The mother said that she then became disenchanted living in Queensland and with her position at (employer omitted). She regretted leaving her job in Melbourne as a (occupation omitted) which she loved.
The father agreed that in 2004, the mother became unhappy living in Brisbane. He said that she did not find her job rewarding and she did not like living close to her parents. They jointly decided that he would look for jobs outside Queensland. He agreed that he was looking to develop his career as well and an available (employer omitted) position had the potential to advance his career. He applied for the position in Tasmania after asking the mother whether she would be happy to move there.
The mother said “he got the job down in Hobart so again we moved for him… Mr Saville needed a job and he needed to get ahead so we made that decision to benefit us”. She agreed that she was keen for that move from Brisbane, somewhere, because she was unhappy in her position in Queensland. She said, “I wasn’t really happy or settled there, it was quite different from what it had been originally”. She said that wanting to be away from her parents or the father’s parents was not the main reason and she was “mainly unhappy with Brisbane”.
In July 2004, the parties moved to Hobart. The father obtained a (occupation omitted) position at the (employer omitted). The mother obtained a full-time position as a (occupation omitted) with (omitted) in 2005. They purchased a home in (omitted).
During the marriage the father said he turned down two job offers as the mother would not move. The first was a position in Perth in 2002. During cross-examination, he said the mother made it clear that she was not going to Western Australia. The second position was in Brisbane in 2006. The father said that the mother became emotional after it was offered and said that she did not want him to take it.
When the mother was asked what supports the proposition that the father was the dominant person in the relationship, she answered, “We moved all the time around for him. It was always his job that led us to go to different places. We took holidays in accordance with his leave”.

Discussions leading to father’s move to Canberra

The parties started having discussions about the proposed move to Canberra in December 2014. The father told the mother about being approached by a representative at the (employer omitted) regarding a position. He believes that she agreed for him to apply for the position and move to Canberra if he was successful. She believes that she made it clear to him that she was not considering leaving Hobart.
During cross-examination, the father agreed that from the commencement of the discussions, the mother said that she would consider a move but could not see a reason to go and was equivocal. The parties continued to have discussions throughout January 2015.
The father said that in late January, the mother was still equivocal about the move. On 30 January 2015, he agreed that she disagreed with his list of reasons of why Canberra was better than Hobart for her and X. After a discussion she left the house in tears. He sent her a text message that evening to apologise. He wrote “OK. I’m sorry. Didn’t mean to get rude and heated. Hope we can continue to discuss this rationally”. [1]
[1] Exhibit M2.
In February 2015, the mother attended a meeting of (employer omitted) in (omitted). She made inquiries about job possibilities in Canberra. She told the father that it was unlikely that there would be any jobs for her in the foreseeable future. She thought that would put an end to the discussions.
The father raised the issue again on 31 March 2015, 29 May 2015 and on other occasions. The mother said that he became more forceful with every conversation. The father agreed that the discussions continued. He agreed that he sent a text message to her which read, “do you want a lift? I promise there won’t be any earbashing”.
On 4 April 2015, she told him that she had decided she would not move to Canberra and would not let him take X if he were to move. She told him that he should not apply for the (employer omitted) position. He told her that he had already applied for the position and he wanted to take it if it was offered to him as it was a once in a lifetime career opportunity for him.
On 24 April 2015, he advised her that he had been shortlisted and asked her to reconsider. On 5 May 2015, he told her that there was a strong prospect he would be offered the job. He again asked “whether they could revisit her decision about not moving to Canberra”.
On 10 June 2015, he was offered the position at (employer omitted). He spoke to the mother about this on the same day. He asked her to move to Canberra and offered to assist her with her moving costs. She said that she told him that she had decided that she and X were better off in Hobart.
On 16 June 2015, the father told her that there was an option to progress the matter and that was for X to move to Canberra with him. On 28 June 2015, he convinced the mother to have one last discussion and told her that the decision to accept the position at (employer omitted) could not be reversed as he had resigned from the (employer omitted). His employment at the (employer omitted) finished on 10 January 2016. He commenced his new position on 11 January 2016.

Care arrangements for X during the marriage

The mother took six months maternity leave after X’s birth. She had difficulties with breast-feeding and had postnatal depression following his birth on (omitted) 2009.
The mother returned to part-time employment with (employer omitted) in (omitted) 2009. She worked three days each week, on Thursday, Friday and Saturday. The father cared for X on Thursday and Saturday and X went to child-care on Friday. The mother increased her days at work to four days in January 2010. The father continued to care for X on one day each week working from home. From January 2012, the mother worked full-time.
The mother acknowledged that the father took an active role in playing with X and focussing on his development. He helped with bathing, feeding, playing and reading to X at bedtime. He also fed X his night-time bottle and helped get up to him during the night once she went back to work.

Care of X after separation

The father said that despite the breakdown of their relationship, the parties have maintained a good and flexible relationship in relation to X. They are able to communicate with relative ease and have been able to successfully co-parent together. Even with the additional stress of these proceedings, they continue to take a child-focused approach in their communication with each other.
The father’s flexible working arrangements enable him to take X to school and collect him from school when in his care. He has used this flexibility to “help” the mother have more free time with X, by collecting him at 3:30 pm and the mother from work at 4:00 pm and dropping them off at her house for their scheduled time together. He said this is also because X “intensely dislikes” after-school care.
The mother agreed that the father has collected them and taken them home. When she collects X from after-school care, she collects him at or before 4:30 pm.
During school holidays, X attends vacation care unless either party is available. The father had a greater ability to take time off during the holidays so has been able to look after him for a substantial part of the holidays.
The father was keen to demonstrate that he has done more of X’s care since separation. He annexed to his affidavit approximate summaries of the times that he has cared for X when he was scheduled to be in the mother’s care and vice versa.[2] He included afternoons when he has collected X from school and the mother from work.
[2] Father’s Affidavit filed 29 February 2016, Annexure S-3.
He estimated that he collected them on the mother’s afternoons with X approximately once a week from separation up to the initiation of these proceedings. He has continued to offer to do this since these proceedings commenced. He has also been able to maximise the amount of time that he can spend at home with X during school holiday periods both on days when he is scheduled to have him and on days when the mother is scheduled to have him but has to work. This means that vacation care is kept to a minimum.
The mother disputed the table and compiled her own table in response.[3] She agreed with only 21 of the 120 occasions referred to by the father as his extra time with X. She said that he included occasions when he has cared for X when scheduled to be in his care when he was in day care or vacation care and when there was an arranged swap of days between the parties. She said that as at 1 March 2016, the parties have both cared for X on an equal number of nights. Any changes to the parenting agreement were made by mutual agreement and the other parent was compensated. The mother has kept a record of all swaps made where X was to spend the night.[4]
[3] Exhibit M6.
[4] Mother’s Affidavit filed 2 March 2016, Annexure B.
During cross-examination, the father conceded that his table was an approximation. He explained that he kept a scratchpad of when he picked X up and where he was going to be at a particular time. When he was asked about several of the entries where he could have been wrong, his answer was that he was not sure.
The mother was more confident of her table being an accurate record than the father was because her table was based on her own records. She agreed that the shared care arrangement between the parties has worked well. She agreed that they both have been able to maintain some flexibility and have been able to swap days when either of them have needed to work or have an important personal event. She said that X has adjusted well to living in two households. She was initially fearful about how he would cope as he has in the past taken time to get used to different situations and can become quite emotional and sensitive to change.
Once the father had committed to moving to Canberra, the mother applied to reduce her work hours so that she could be more available to X in the afternoons. Her application was successful. From April 2016, her work hours will be from 8:45 am until 2:45 pm every day, with flexible start and finish times. A letter from the Human Resources Department of (employer omitted) to the mother dated 4 January 2016, indicated that this will continue between 4 April and 3 October 2016. The mother said that it is likely she will be able to extend this into the future. Her reduced hours will allow her to drop X to school and collect him from school each day.
X has been in the joint care of the parties since separation. I indicated during the hearing that I did not consider the evidence about which parent has collected X more or cared for him on more days than the other, will assist me in determining which proposed parenting arrangement is in X’s best interests.
The evidence indicates that both parties are loving, excellent and capable parents. I agree with Family Consultant Ms M that X has benefited from each of them willingly taking responsibility for certain parenting tasks and benefited from one parent or the other being more available to care for him at certain times. X has a close and loving relationship with each parent.

The Mother’s evidence about her health

The mother began to see a psychologist for depression and anxiety in February 2010, when X was approximately 12 months old. She saw a psychologist on and off for a period of three years. She believes that the father did not offer her much emotional support during this time as he was not approachable and often dismissed her and referred to her as “crazy”.
She said that she spent most sessions with her psychologist speaking about her relationship with him, how unhappy and unsupported she felt and trying to get advice on how to cope with this.
In late 2010, she reluctantly went on the lowest dose of Lexapro, an anti-depressant medication. She did not find the medication helpful and stopped taking it approximately one year later.
She was then diagnosed with Hyperthyroidism caused by Hashimoto’s Disease, an auto-immune disorder commonly brought on by pregnancy. The symptoms include depression, anxiety, brain fog, slowed mental and physical response, fatigue, weight gain and muscle aches. Despite this, she did not take time off work and did not let her symptoms affect her relationship with X. She believes it had an effect on her relationship with the father. However, she reports that since separation, her outlook has significantly improved. She states that she has not had a “low mood” for several years.
She indicated that she had difficulties settling in when moving to other places in the past. She considers that she was depressed upon every move, with the exception of the move to Hobart, as she finally felt she could settle in Hobart. When she separated from the father, this was another big change. She thought she may be headed for another difficult period in her life, so she sought help. She has worked hard to open up to people about her difficulties which she has never done before. She has developed meaningful relationships with people in Hobart to whom she can turn to in a crisis.
She has worked hard with her psychologist to put systems in place to help her to do things differently, to avoid falling into patterns which lead her to a depressed state. The realisation of this necessity has taken her 20 years. She is, therefore, concerned that if she were to move to Canberra, she may not be able to replicate what she has worked on. She has worked hard to establish a supportive group of friends and a loving relationship with Mr R. She sees a relocation to Canberra to be a “death sentence, figuratively speaking” in regard to her mental health, which ultimately will be detrimental to her relationship with X and her ability to effectively care for him.
She is happiest and comfortable when her life is in balance. She is more stable and capable. She has a great community of friends, a loving relationship, a fulfilling job and she feels at home in Hobart.

The Father’s evidence about the mother’s health

The father agreed during cross-examination that the mother became distressed about living in Melbourne and was “sometimes up and sometimes down” when they lived there. He agreed that she did not have a close circle of friends and thought that may improve in Queensland. In 2002 they moved back to Brisbane when he obtained employment. She was unsettled in Brisbane because she was close to completing her (omitted) qualifications but there were no (employment omitted) jobs.
The father said that they moved from Brisbane to Hobart on the basis that the mother was depressed and unhappy. He accepted that she became stressed about the move. He agreed that an email dated 9 May 2004 demonstrates how she becomes stressed. It reads as follows:
as you can probably tell from this morning, I am a little stressed about moving. I am very happy you got the job and am OK about moving and I will be excited when I move there but until then there is this very stressful and tense moment where I stress a very large amount about packing and where we will live and finding a job and money etc etc. I am not putting up obstacles but would feel a lot better about moving in Sept/Oct as then I can prepare myself sufficiently. I hated the fact that we moved from Melbourne in one month. You must allow me the time to stress. You can try to calm me down but don’t say I’m putting up blockages or I am stressing over nothing. Sympathise with me. I love you and I know this is the right decision but I just need a bit of time to get used to it. OK! At the moment I am feeling quite a bit stressed and as you know I can work myself up very quickly in a short space of time. Please do not stress with me but do try to calm me down and reassure me that it will be okay (but not with grandiose ideas about how wonderful it will be to get into (employment omitted) as that might be disappointing). OK I love you. Hope you are having a good day. [5]
[5] Exhibit M1.
The father agreed that the mother had postnatal depression after the birth of X. He agreed that she struggles with change. He said “she stresses during these periods of change”. He had turned down two past job offers (in Perth and in Brisbane) on her insistence that she would not move.
Whist living in Hobart in 2006, he applied for a job in Queensland. He did not take it because the mother did not want to move. He agreed that she told him that she was feeling a bit sad but the only thing that was making her happy was that she was living in Tasmania. He agreed that as the years passed, she became more settled in Tasmania and Tasmania became a very important part of her identity. He said, “I think that she’s going to be unhappy wherever she is, in my experience of Ms Taft. Whether it was Melbourne, she was unhappy, Brisbane, unhappy, Tasmania, she has been unhappy. She may have become happy recently…”
The father therefore did not dispute that the mother has suffered from depression in the past. He did not dispute her past unhappiness about moving and about the stress she suffers. He agreed that her happiness is intertwined with X’s happiness.
In respect of the mother’s belief about the lack of emotional support he gave her after X’s birth and his lack of acknowledgement that she was unwell, his evidence was that he did not call her “crazy”. He said he was very careful not to use that word and it was the mother who used it.

Dr K's Evidence

The mother’s psychologist, Dr K, prepared a report at the request of the mother’s solicitors, who asked her a series of questions. Dr K based her opinions on 31 clinical interviews with the mother; the observations of the mother’s GP at the time of the initial referral; her training as a psychologist; a combination of the mother’s perception of the facts; and her application of critical judgment, skills and knowledge. The mother’s GP described a history of postnatal depression and expressed concerns about her recent experience of low mood, decrease in motivation, anhedonia, chronic fatigue, perfectionism and the breakdown of her marriage. In February 2016, Dr K also had the mother complete a DASS-21.
Dr K’s qualification as a clinical psychologist was not challenged. However, she was rigorously cross-examined by counsel for the father.
Dr K was of the view that the mother demonstrated symptoms consistent with a diagnosis of postnatal depression following X’s birth and symptoms which are consistent with a diagnosis of major depressive disorder. She identified two discrete major depressive episodes occurring prior to his birth in addition to one that occurred shortly after his birth. The mother has not experienced any noteworthy major depressive episodes in the two years in which they have been working together and she is not currently experiencing one.

The mother first reported to Dr K her knowledge of the father’s intention to apply for a job in Canberra in their session on February 5, 2015. This was a source of significant stress for the mother.
Dr K reported that since the relocation case has progressed, the mother’s overall stress levels have elevated to such an extent that she currently meets criteria for an adjustment disorder with symptoms of both anxiety and depression arising in response to a clearly identifiable external stressor (the threat of X moving interstate). On a Depression Anxiety Stress Scale (“DASS-21”), completed on 4 February 2016, she scored in the moderate range for anxiety and depression and the severe range for stress.
Dr K was of the view that the mother functions best in an environment characterised by stability and routine and thrives on predictability and order. She wrote that “a forced relocation would constitute the antithesis of this, so even in the remarkable absence of a major depressive episode, it is clear that Ms Taft’s general happiness and wellbeing would be adversely affected”. The words “forced relocation” were used in the letter to Dr K from the mother’s solicitors as follows, “…A relevant consideration in this matter is the effect of a forced relocation upon Ms Taft’s mental health”.
During cross-examination, Dr K made it clear that she was aware that the court will not force the mother to move anywhere and this would be a decision for the mother to make. She explained that her use of the word “forced” in her report came from her description of the decision as an untenable one.
During cross-examination, Dr K made it clear that her opinion about the effect of the “forced relocation” on the mother was not based solely on her view of a power differential between the parties. Dr K explained that the issue of “learned helplessness” is a different issue to the risk of a major depressive episode. She said “I am very clear that relocation would increase the likelihood of a major depressive episode”.
Dr K was of the view that the mother’s vulnerability to regress back to low mood, a decrease in motivation, anhedonia, chronic fatigue and perfectionism will, in her opinion, compromise her ability to parent. Dr K believes that she would not be able to provide for X’s emotional needs. She was also concerned about her ability to parent in the absence of any broader social network and support, or the “scaffolding” that supports good mental health and resilience, which she has built up by living in Hobart for 11 years.
In respect of the mother’s capacity to parent X in the absence of the father, Dr K was of the view that the mother is being realistic about the changes and challenges that would occur. The mother is aware that she would have to do things differently. Dr K believes that due to the support the mother has around her, the level of her stress should be manageable. There are a number of protective factors present and the mother has the ability to foresee the issues and to problem solve.

Conclusion about Dr K's Evidence

Expert opinion evidence was considered in the well-known decision of Makita (Australia) Pty Ltd v Sprowles,[6] in which Heydon JA (as he then was) said as follows:
... if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witnesses expert knowledge”; so far as the opinion is based on facts “observed” by the experts, they must be identified and admissibly approved by the experts, in so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the experts evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion that is propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on expert specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. An attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but to use Gleeson CJ’s characterisation of the evidence in HG v The Queen (1999) 197 CLR 414 (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.[7]
[6] (2001) 52 NSWLR 705.
[7] Ibid, at para 85.
I accept Dr K’s opinion about the mother’s psychological health, which was not challenged. I place weight on her evidence about the risk to the mother’s mental health if she moves to Canberra and the consequent impact on her parenting capacity. I also place weight on her evidence of her assessment of the mother’s capacity to parent X in the father’s absence.
I do not place any weight on her opinion about a power differential between the parties which was based on assumed facts from the mother. I am not persuaded that the evidence supports a proper foundation for this opinion. Whilst the parties have moved due to employment available for the father, the mother agreed that she moved to Melbourne to follow the father to continue the relationship and that she was unhappy there and wanted to move back to Brisbane. She agreed to move back and subsequently regretted the move. She also agreed to move to Hobart. I accept the father’s evidence that they did not move on two other occasions when the mother indicated she would not move.
Dr K made it clear that the issue of a power differential and a risk of a sense of learned helplessness by the mother having to move for the father’s career choice was a separate issue from the risk of a major depressive episode.

Evidence of Ms J, the father’s partner

Ms J worked part-time as an (occupation omitted) at the (employer omitted) until November 2015. She has known the father and has been a colleague and friend for a number of years. She started living with him in December 2014. She has never been married and does not have any children. Ms J is moving to Canberra with the father. She indicated that she is intending to obtain employment as a (occupation omitted).
She has a close relationship with X. They play board games and read stories together. She helps the father get X ready for school and pack his lunch when it is required. She has on a number of occasions dropped X off at school and collected him. She attends school and sporting events.
If X moves to Canberra, she will provide the father and X with whatever assistance is needed.

Evidence of Mr R, the mother’s partner

Mr R is employed as a (occupation omitted). He has a 12-year-old daughter, A. She lives in Melbourne with her mother. A spends every period of the school holidays with him and also occasional weekends when he travels to Melbourne or when A comes to Hobart.
Mr R suffered financial difficulties with his (omitted) business and was required to declare bankruptcy. He has had to start again financially. He saved to buy a block of 12 acres of land at (omitted). By living on his yacht for approximately two years, he has been able to make significant savings to enable him to build a house.
Over the last three months, Mr R has spent the majority of his time at the mother’s house. For all of the last Christmas school holidays, A and he lived at the house with the mother and X.
During cross-examination, he indicated that he has been working for (employer omitted) for about 18 months. His hours of employment are from 7:30 am till 4:00 pm, except on Fridays when he finishes at 1:30 pm. He does not normally work at weekends. He would be able to collect X from school if there was an emergency. If the mother had to work and X was sick, it would not be impossible for him to care for X, as his boss has two children and is understanding.
Mr R has discussed with the mother about living together but due to these proceedings, they cannot make the commitment or move the relationship to the next stage. During cross-examination, he said that he and the mother have talked about their long-term future and have discussed marriage. He made it clear that if the mother moves to Canberra he would not move. He believes that a move would be the end of their relationship. His mother lives in an aged care facility in (omitted) and has vascular dementia and is not very well. Due to what has happened to him financially, he said he has had to work very hard to get to his current position. It would be hard for him to leave his family and to start again. His father passed away two years ago and he has two sisters, to whom he is close, in Tasmania. His daughter is very close to his sisters, so a move for him would move her away from these relationships as well. He has a very close family.

Relevant Law

These are parenting proceedings which involve a proposed relocation of X’s residence from Hobart to Canberra. Relocation cases are recognised in many decisions as being very difficult. There is usually great disappointment for one parent. There can be consequences for children in respect of their relationships with the remaining parent.
The Full Court of the Family Court in Taylor & Barker[8] referred to the logical approach which should be followed in relocation cases and suggested that s.60CC of the Family Law Act 1975 (“the Act”) should be considered first, followed by s.61DA and s.65DAA.
[8] [2007] FamCA 1246.
The Full Court stated:
the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate and discrete issue, but rather as just one of the proposals of the child’s future living arrangements, in so far as that approach is possible.[9]
[9] Ibid, at para 53.
The competing proposals of the parties need to be properly considered against the criteria in s.60CC of the Act, informed by s.60B. Section 60B provides as follows:
(1)    The objects of this Part are to ensure that the best interests of children are met by:
(a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)
If an order for equal shared parental responsibility is made, the court is required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests, and is reasonably practicable. If the court does not make an order for equal time, it is then required to consider whether it is in the child’s best interests and whether it is reasonably practicable for the child to spend substantial and significant time with each of the parties. It must be considered whether such arrangements are reasonably practicable by addressing matters in s.65DAA(5). Section 65DAA provides a framework to consider the advantages and disadvantages of the several time scenarios but also other results which may be in the child’s best interests, including the proposal to relocate.[10]The advantages and disadvantages of that proposal can be balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement.[11]
[10] Sayer & Radcliffe [2012] FamCAFC 209, at para 53.
[11] Taylor & Barker [2007] FamCA 1246, Duggan & Duggan [2009] FamCAFC 115, Heaton & Heaton [2012] FamCAFC 139.
In determining this matter, X’s best interests remain the paramount but not the sole consideration.[12] They must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.[13] The parent wishing to move does not need to demonstrate compelling reasons.
[12] Family Law Act 1975 (Cth), s.60CA.
[13] Morgan & Miles (2007) FLC 93-343.
A court determines the child’s best interests by considering the primary and additional considerations set out in s.60CC of the Act. I shall now turn to consider these factors.

The Primary Considerations

Section 60CC(2)(a)

Section 60CC(2)(a) provides that the court must consider “the benefit to the child of having a meaningful relationship with both of the child’s parents”. This consideration is informed by s.60B(1)(a) of the Act, which provides that the best interests of a child are to be met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
The term “meaningful” has been the subject of a number of judgments. In Mazorski v Albright,[14] Brown J considered the dictionary definitions of “meaningful” and then went on to say:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[15]
[14] (2007) 37 Fam LR 518.
[15] Ibid, at 526-527.
In McCall & Clark,[16] the Full Court of the Family Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski. The Full Court also agreed with the reasoning of Bennett J in G v C[17] that the enquiry about the terminology of “meaningful” requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child. The Full Court considered that a court is required to focus on the benefit to the child of having a meaningful relationship with his or her parents.[18]
[16] (2009) FLC 93-405.
[17] [2006] FamCA 994.
[18] McCall & Clark (2009) FLC 93-405, at para 119.
X has a close and loving relationship with each of his parents. He has an established meaningful relationship with both parents.
I consider that it is of benefit to X to continue to have a meaningful relationship with each of his parents. I consider that he can continue to have a meaningful relationship with both parents on the proposals of both parties.

Section 60CC(2)(b)

Section 60CC(2)(b) provides that, when determining the best interests of a child, the Court is required to consider “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

Section 60CC(2A)

Pursuant to s.60CC(2A), when applying the considerations set out at ss.60CC(2)(a) and (b), the Court is to “give greater weight to the consideration set out in paragraph (2)(b)”. Section 60CC(2A) must be read alongside ss.60CC(2)(a) and (b).
Neither of these sub-paragraphs are relevant. X has two loving parents. There are no issues of family violence or exposure to family violence.

Section 60CC(3)(a)

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

Where a child expresses views about his or her welfare, the child’s views must be considered together with any factors the court feels are relevant to the weight given to the child’s views.[19]
[19] R v R Children’s Wishes [2002] FLC 93-000.
The mother gave evidence that X has continuously expressed a desire to stay in Hobart so that he does not have to change schools. He has said “I would miss my boys and be sad, I would not want to go.”’
The mother agreed that X has spoken to her on one occasion about wanting to go but said this was for fun type reasons. All the other times when they have talked about it, he told her that he wants to stay in Hobart. She tries not to talk about this with him because he has told her he does not like talking about it and it makes him sad.
The father agreed that X has said that he “would miss his boys at school if he had to change schools” and said, “I don’t want to leave my friends at (omitted)”. He has also said, “I want to go to Canberra”, so he has told him all sorts of different things. He said he would not want to go to a new school in Canberra. The father agreed that X has said that he did not like the shirts at the new school and that he did not want to go.
The father said that some of X’s comments reflect his confusion, such as, “will I have to throw away all my toys if I go to Canberra? Will I not have my bed? Will I be able to play with any of my friends?
X is seven years old. He is too young for any of his expressed views to be given weight. As Ms M wrote, he cannot know whether he is likely to be more contented living with his father in Canberra or his mother in Hobart.

Section 60CC(3)(b)

the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

X has a very close relationship with both of his parents and is used to spending time with both of them on a regular and frequent basis. He is used to having both parents available to attend his school sporting events, assemblies and other important events.
X and the father’s partner, Ms J, have a good relationship. He has now lived with Ms J for over a year and has quickly accepted her as part of the family. The three of them go on holidays together. Ms J has been able to collect X from school, give him dinner and bath him when the father has been unavailable to do so due to work commitments.
The mother’s partner, Mr R, met X over the Christmas school holidays when his daughter A was staying with him. He described X as a well-adjusted and respectful young man.

The mother said that X has a good relationship with his extended family. He has been able to get to know and love his grandparents, uncle and aunt and cousins despite them all living interstate. X communicates with her parents, her brother and his cousins by telephone and Skype. He loves catching up with them when they travel to Brisbane.
The mother has always got on well with the father’s extended family, but they no longer communicate often. She said that she will maintain a relationship between X and the paternal side of the family. The mother said that the father’s relationship with her extended family is non-existent.

Section 60CC(3)(c)

the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)          to participate in making decisions about major long‑term issues in relation to the child; and
(ii)         to spend time with the child; and
(iii)       to communicate with the child;

Both parents have participated in making decisions about major long-term issues in relation to X. He has been living with each of them in a shared care arrangement.
The mother made complaints about the father not informing her of various events such as a presentation when X was to receive a certificate. The father said that he did not check X’s diary on the night before the presentation and, therefore, did not know about it. He also did not attend. He said that he may have missed several notices which may not have been passed on to the mother. He said that he has missed two or three over 2 ½ years. He said the mother has done so as well.
I do not have any concerns about these issues and regard them as minor. I consider that both parties have the capacity to facilitate a close and continuing relationship between X and the other parent.

Section 60CC(3)(ca)

the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

The parties have entered into a binding child support agreement. The father pays 60 per cent and the mother pays 40 per cent of X's (omitted) School fees. All other expenses are shared equally.

Section 60CC(3)(d)

the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

If X is separated from one parent because either does not live in the same city, X will miss the absent parent. However, he will have unlimited communication with the absent parent and will spend regular time with that parent. He will be able to maintain a meaningful relationship with the absent parent.
If X relocates to live in Canberra, the likely beneficial effect is that he will be able to live with his father. His father is able to take him to school and collect him due to the flexibility of his employment hours.
A move will mean that unless the mother moves, X will not be able to spend equal time with his mother. The father agreed during cross-examination that X would be devastated if he were to be separated from his mother. A move to Canberra will be a significant change for X with a change of school and friendships. He will need to adapt to such changes.
Ms M indicated that some children are excited about a possible move but it is more common that children prefer the consistency of remaining in the same school and community. She said that children generally find the changes and associated adjustments in regard to living in a new community challenging.
If the mother moves to Canberra, she will have the support of the father in caring for X. He will have the benefit of having both parents involved in his daily routines.
It was accepted by the father that the mother has suffered from depression in the past. He accepted that throughout the marriage the mother has found it difficult to cope with change. The evidence of Dr K indicates that it is likely that a move to Canberra will impact on the mother’s mental health and compromise her parenting capacity.
If X lives with the mother in Hobart, the likely beneficial effect is that he will remain in a stable and familiar environment at the same school where he has attended for the past three years. X is happy at (omitted) and has a group of friends. The father acknowledged that X struggles with change and his friendship groups in Tasmania are important for him.
The likely adverse effect of X living in Hobart is that he will not have the opportunity to have both parents involved on a weekly basis in day-to-day activities such as attendance at school and other extra-curricular activities. X will no longer have the benefit of his father being involved in his daily routine. The mother told Ms M that X would be devastated about a reduction in his time with his father.
The father believes the mother will not be able to cope solely with X’s care in Hobart. Dr K believes that in a stable and supportive environment her stress can be managed. The mother wants to be happy and have support so that she can do the best job she can as a mother for X. The mother will have her friends, vacation care, after-school care and her partner for support. There is a benefit to X of having a stable and happy mother. She is less likely to suffer a depressive episode if she lives in a settled environment.

Section 60CC(3)(e)

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

There are no direct flights from Hobart to Canberra. The mother annexed to her affidavit an example of a week’s flights between Hobart and Canberra. There are a number of flights available each day.
The father has four weeks leave each year but indicated that he has more flexibility during school holidays and can take more time during the holidays if he wants to. Although (employer omitted) do not necessarily coincide with the school holiday dates, he would be able to sort something out as he would like as much time with X as possible.
The mother’s proposal is to enable her to spend four weeks’ leave with X, two weeks in the Christmas school holidays and one week in the first and third term holidays.
During cross-examination, the father was asked about the mother’s proposals. In respect of her proposal that X remain living with her in Hobart and X spend time with him for one half of the first and third term holidays and the entirety of the second term holidays, the father said these proposals are acceptable to him. Her proposal of four long weekends each year during school terms, such time to occur in Hobart or Canberra at his election is acceptable. A proposal for time for up to four weekends each year during school terms from Friday until Sunday in Hobart and Melbourne as agreed is acceptable. However, he proposed Hobart, Melbourne or Brisbane or other places as agreed. The proposal that Easter alternate between the parents each year is also acceptable.
The father earns $160,000 per annum. The mother earns $86,000 per annum if she works full-time. The father proposed that if X moves to Canberra and the mother remains in Tasmania, he pay 75 per cent of X’s travel costs while the mother works .8 of a full-time week. If she works full-time, he proposed that the costs be shared equally because they share X’s other expenses. During cross-examination, the father agreed to pay 75 per cent of all travel costs which includes the mother’s travel costs to accompany X.
The father proposed that if the mother moves to Canberra he pay her moving costs and airfares. He will pay her rental costs for a period of 12 months. He will also pay her $15,000. For a period of three years he will be solely responsible for the cost of four trips each year for the mother and X to travel to Hobart. This cost will include accommodation and all other reasonable travel expenses. He will pay the first full year of X’s private school fees in Canberra including school books, uniforms and agreed extra-curricular activities.
If X remains living in Tasmania, the father proposed that X’s travel costs be shared equally.
Neither party pays child support to the other pursuant to the parties’ binding child support agreement. If X lives primarily with one parent, that parent will be responsible for the main burden of his living costs, unless the agreement is terminated.
The father indicated that unaccompanied travel can take place when X is eight years old.
The father has a greater earning capacity than the mother to pay the costs of travel.
I consider that the expense of X spending time and communicating with a parent will not substantially affect his right to maintain personal relations and direct contact with both parents on a regular basis.

Section 60CC(3)(f)

the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

Ms M wrote:
The information from the parents suggests that they are each able to take on the responsibilities involved in caring for X on a primary basis. It is evident that each parent would support X in maintaining his loving relationship with his other parent.
I consider that the father has the capacity to provide for all of X’s needs. He will need assistance with X’s care if he travels overseas for work. His partner is able to assist him.
The father’s position was that if the mother is responsible for X’s primary care, she will not be able to cope, as he will not be there to assist her. He has acted as a practical “crutch” for her to assist her with the care of X. He believes that she would fall apart without him being there for her.
The mother said that over the last six months her reliance on the father has diminished and she has relied on others. Her partner stays with her six nights each week. He helps her from time to time to care for X if she has to go to the shops and she has her family if there was a real need. She can also use vacation care and babysitters.
If X is in her primary care in Hobart, she has recognised that she will need to do things differently. She will need support from friends, her partner and during vacations. Dr K believes that in a stable and supportive environment that her stress can be managed.
I am not persuaded that the mother will not be able to cope with X’s care if he continues to live in Hobart. I consider that she will be able to provide for all his needs.
If the mother moves to Canberra, she will need to obtain employment to be able to provide for X’s physical needs. She will be dependent on the father for financial support at least for an unknown period of time. There is a risk of her suffering a depressive episode. I accept Dr K’s view that if that were to occur it is likely that her ability to parent will be compromised. Even if she does not suffer a depressive episode, it is likely she would be unhappy living in Canberra, with a consequent impact on X. She does not want to live there without her partner and friends and employment. She has lived in Hobart for around 11 years. She said that she would be deeply unhappy if she has to leave Tasmania and live in Canberra. The father gave evidence that she will be unhappy wherever she is. However, he agreed with the mother’s statement that she is “happiest” in Tasmania.
In Hobart the mother has the daily support of her partner and the support of her friendship network. She has current employment with (employer omitted) as a (occupation omitted). She said that there have been hard times but she loves the job and that is the job she wants to retain. I consider that the mother will better provide for X’s needs living in Hobart.

Section 60CC(3)(g)

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

This sub-paragraph is not relevant.

Section 60CC(3)(h)

if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

This sub-paragraph is not relevant.

Section 60CC(3)(i)

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

Both parties have a responsible attitude to X and to the responsibilities of parenthood. They are both committed to X’s welfare and have demonstrated that they take their responsibilities seriously. A series of text messages demonstrate the co-operative parental alliance the parties have had. They have been able to discuss changes to the care arrangements during holiday times and term times, depending on who was more available. These messages clearly demonstrate how well they have worked together for X’s benefit.[20]
[20] Exhibit F3.
Not surprisingly, there has been some tension and minor problems between the parties since the relocation discussions commenced. I consider that once the litigation has finalised, the tension between them should dissipate.
Whilst each party made some complaints about the other, I have no concern about their attitude to parenting.

Sections 60CC (3)(j) and (k)

(j)     any family violence involving the child or a member of the child’s family;
(k)      if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)     the nature of the order;
(ii)    the circumstances in which the order was made;
(iii)   any evidence admitted in proceedings for the order;
(iv)   any findings made by the court in, or in proceedings for, the order;
(v)     any other relevant matter;

This sub-paragraph is not relevant.

Section 60CC(3)(l)

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

The proposals of each party will enable X to continue to have a meaningful relationship with each of them. However, parenting orders are never final. Circumstances can change and as X becomes older, the parties may need to reconsider his needs and school commitments and vary the parenting arrangements.

Section 60CC(3)(m)

any other fact or circumstance that the court thinks is relevant.

There is no other fact or circumstance that the Court considers relevant.

Parental responsibility

The presumption of equal shared parental responsibility applies. I consider that it is in the best interests of X that his parents have equal shared parental responsibility for him. Both parents are responsible and loving parents and he has a close relationship with both of them.
X has been living in an equal time arrangement with his parents since separation. He is happy and doing well at school. The advantage of this proposal is that X can spend time with each parent on a regular basis and both his parents can be involved in his daily routine and can be involved with his schooling and extra-curricular activities. An equal time arrangement is in his best interests. However, equal time is reasonably practicable only if the parties live in geographical proximity. The mother would need to move to Canberra. Similarly, substantial and significant time is only reasonably practicable if the parties live in geographic proximity.
If X lives in Canberra with the father and the mother lives in Hobart, X will be able to have a meaningful relationship with his mother by spending regular weekend and holiday time with her.
Similarly, if X lives in Hobart with the mother, he will be able to have a meaningful relationship with his father by spending regular weekend and holiday time with him.
X is progressing well in Hobart. The father acknowledged that he struggles with change, and his friendship groups in Tasmania are important for him. X will be able to maintain his current stable environment. He will be able to maintain his friendship groups, his schooling and connections with the mother’s friends.
The mother is settled in Hobart with accommodation and employment. She is likely to be at less risk of experiencing unhappiness or depression in Hobart. She has been consulting Dr K since January 2014 and intends to maintain a relationship with her. The mother will be able to maintain her friendships one of the protective factors which contributes to her resilience.
The father’s flexibility in his employment and his income should enable him to travel frequently. He said that of the two of them, he is the person who is better able to travel at short notice to spend time with X.
This has been a finely balanced case because both parents are very much involved with X’s care. X has a close and loving relationship with both of them.
Having regard to all the evidence, I consider that X should continue to live with the mother in Hobart. X will miss his father but he will be able to have a meaningful relationship with him. I have no concerns about the mother’s willingness and ability to continue to encourage a close father and son relationship.
I am of the view that it is in X’s best interests that he spend time with the father in accordance with the mother’s proposal for holiday time, namely for one half of the first and third term holidays; the entirety of the second term and Christmas school holidays, save for two weeks that X will spend with the mother that will alternate over Christmas Day in odd years and in January in even years. He should spend Easter each alternate year with each party.
This time will enable X to spend four weeks’ leave per annum with the mother, two weeks in the Christmas school holidays and one week in the first and third term holidays. He will spend the balance of holiday time with his father.
The father proposed that X spend time with him every fourth weekend in a four week cycle from Friday until Monday, such time to take place at a serviced apartment in Hobart and for the parties to share the costs of that accommodation equally. This means that the father will travel to Hobart to spend weekend time with X approximately twice per term. I consider that this time is in X’s best interests and means that the father can be involved in his schooling.
The father also proposed that every second weekend in a four week cycle, X spend time with him from Friday until Sunday, such time to take place in Canberra or Melbourne or such other place as is agreed or nominated by him. This time will mean travel for X approximately eight times per annum as well as travel for school holiday periods in Canberra four times per annum. The frequency of travel for X to Canberra or Melbourne, with common travel difficulties such as delays and waiting time may be onerous for him. As he gets older and develops sporting and other interests or extra-curricular activities, he may find them difficult to miss.
I consider that the mother’s proposal that X spend time with the father on four long weekends each year during school terms, such time to occur in Hobart, Canberra, or Melbourne at the father’s election is a better option for X.
This will mean that X’s time with the father will by necessity, be less frequent than what he has been used to. However, I consider that this will not diminish his meaningful relationship with the father. X and the father will be able to continue to have a meaningful or an “important, significant and valuable” relationship by spending regular weekend and holiday time together and by having telephone and other communication.

Having regard to the relevant factors under s.60CC to the financial circumstances of the parties and the fact that the father is the party moving from Hobart, I consider that the father should pay his own travel costs to Hobart and accommodation costs in Hobart.
I consider that the mother should share equally in the school holiday travel costs for X’s return from Hobart to Canberra. I consider that she should also pay one quarter of X’s travel costs for the long weekend travel if it occurs in Canberra or Melbourne.
If the mother is required to travel with X to Canberra or Melbourne or such other place as agreed, she can pay her own travel and accommodation costs.
X will be able to travel unaccompanied when he attains eight years of age in (omitted) 2017. This will reduce the travel costs.
In my view, these arrangements will promote a meaningful relationship between X and both parents to maximise the benefit to X of such relationships.

I certify that the preceding one hundred and seventy nine (179) paragraphs are a true copy of the reasons for judgment of Judge Baker

Date: 27 May 2016

[2016] FCCA 1195

27 May 2016

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