SELLERS & SELLERS
[2016] FCCA 2240
•19 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SELLERS & SELLERS | [2016] FCCA 2240 |
| Catchwords: HELD – Relocation allowed – parties to maintain equal shared parental responsibility. |
| Legislation: Family Law Act 1975 (Cth) ss.60B; 60CA; 60CC; 61DA; 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Sigley & Evor (2011) 44 Fam LR 439 |
| Applicant: | MR SELLERS |
| Respondent: | MS SELLERS |
| File Number: | MLC 9623 of 2015 |
| Judgment of: | Judge Bender |
| Hearing date: | 17 August 2016 |
| Date of Last Submission: | 18 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 19 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Fisken |
| Solicitors for the Applicant: | J A Middlemis |
| Counsel for the Respondent: | Mr McLeod |
| Solicitors for the Respondent: | Joliman Lawyers |
ORDERS
All previous parenting orders be discharged.
The Father and Mother have equal shared parental responsibility for the children of the marriage X born (omitted) 2007 (‘X’) and Y born (omitted) 2012 (‘Y’).
X and Y live with the Mother.
The Mother, X and Y be permitted to relocate to the (omitted)/(omitted) area.
Pending relocation X and Y continue to spend time with the Father in accordance with the interim orders made 23 November 2015.
Upon relocation, the Father spend time with X and Y as follows:
(a)from 6.00pm Friday to 5.00pm Sunday each alternate weekend. Such time to be extended from 6.00pm Thursday and/or 5.00pm Monday if the Friday and/or Monday falls on a long weekend or school free day. This time to be suspended during school holidays and recommencing on the first weekend of each school term;
(b)for one week of the first term school holidays at times agreed, such time to include the Easter weekend in 2018 in each alternate year;
(c)for ten days of the second and third school term holiday period at times agreed. Failing agreement, for the first ten days of such school term holiday;
(d)for one half of long summer school holidays at times agreed between the parties. Failing agreement:
(i)for one half of the 2016/2017 school holiday period commencing 3.00pm 24 December and each alternate year thereafter;
(ii)for one half of the 2017/2018 school holiday period commencing 3.00pm 3 January and each alternate year thereafter.
(e)if Father’s Day does not fall on a weekend when the Father would ordinarily be spending time with X and Y, the Father shall spend time with X and Y on Father’s Day weekend and if Mother’s Day falls on a weekend when the Father would ordinarily be spending time with X and Y, such time shall be suspended to enable X and Y to be with the Mother;
(f)by telephone/Skype/Facetime or such other electronic means at reasonable times with the Mother to afford X and Y privacy during such communication; and
(g)other times as may be agreed between the parties.
Upon the Mother’s relocation to (omitted)/(omitted), changeovers occur in the main street of (omitted).
Each party shall:
(a)keep the other party advised at all times of their current residential address and telephone number and notify the other party within 48 hours of any change;
(b)advise the other party immediately in the event that X and Y suffers any serious illness or injury;
(c)authorise any medical practitioner or health professional upon which X and Y may attend from time to time, to communicate with the other party in respect to X and Y’s medical condition and/or requirements;
(d)do all things necessary to authorise and/or facilitate all schools/kindergartens at which X and Y may attend, from time to time, to:
(i)provide the other party at the expense of the other party copies of all school reports, notices and photographs in relation to X and Y; and
(ii)communicate with the other party either by telephone, in writing or by personal attendance, in respect to X and Y’s progress.
The Father be at liberty to attend all school/kindergarten functions that is normal for parents to attend including but not limited to sports days, working bees, parent teacher interviews and Father’s Day functions.
The Father be at liberty to attend all sporting events and extra-curricular activities that X and Y participate in.
The Mother and the Father be at liberty to provide a copy of the parenting agreement/orders to any one or more of the following:
(a)any medication practitioner and/or allied health professional attending upon X and Y; and
(b)the Principal or delegate of the Principal of the school/kindergarten attended from time to time by X and Y.
Each of the parties be themselves and/or their agents be and are hereby restrained by injunction from:
(a)harassing or assaulting the other party;
(b)denigrating, rebuking or belittling the other party to or in the presence or the hearing of X and Y, and from allowing X and Y to remain in the presence of any other party who may be so doing;
(c)discussing these proceedings, to, with or in the presence or hearing of X and Y and from permitting any other person to do so;
(d)exposing X and Y to conflict or disagreements between the Mother and the Father or between any other person in the household;
(e)allowing X and Y to handle any time of firearms until such time as X and Y are licensed to do so; and
(f)discussing financial circumstances with X and Y.
The parties shall both attend a Parenting Orders Program in an endeavour to improve their communication and to gain insight/skills to better parent X and Y as separated parents.
IT IS NOTED that publication of this judgment under the pseudonym Sellers & Sellers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9623 of 2015
| MR SELLERS |
Applicant
And
| MS SELLERS |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
This matter relates to the living arrangements for the parties’ two children, X, born (omitted) 2007 (“X”) and Y, born (omitted) 2012 (“Y”).
The Father is seeking orders the Mother be restrained from relocating with X and Y from (omitted) to (omitted).
The Father is also seeking the parties have equal shared parental responsibility for X and Y and for X and Y to live with him and spend time with the Mother alternate weekends from after school Friday to 7:00pm Sunday, each Wednesday from after school to before school Thursday, half holidays and that there be a sharing of special occasions.
In the event the Court is not persuaded to change primary care of X and Y from the Mother, the Father seeks that the existing arrangements whereby X and Y live with the Mother and spend time with him each alternate weekend from Friday to Sunday, each Wednesday night and each Thursday from after school to 7:00pm be varied such that X and Y spend time with him each alternate week and from after school Wednesday to before school Friday in each week.
The Mother is seeking Orders that X and Y be permitted to relocate to (omitted). In the event relocation is allowed, the Mother proposes X and Y spend time with the Father each alternate weekend from 6:00pm Friday to 4:00pm Sunday, one week in the first term holidays, ten days in the second and third school term holidays, half the long summer vacation, on the Father’s Day weekend in substitution for the following weekend and by telephone at reasonable times.
The Mother proposes changeover take place in (omitted).
The Father indicated through his Counsel that if relocation were allowed, he was in agreement with the Mother’s proposal for his time with X and Y with some minor amendments being that time conclude 5:00pm Sunday, the Mother have the Mother’s Day weekend and the Father have the Father’s Day weekend without there being any variation to the alternate weekend arrangements.
The Mother readily agreed to the Father’s suggested alterations to her proposal in the event of relocation.
In the event relocation is not permitted the Mother, who will not relocate without X and Y, proposes that their current arrangements continue with no extension of time as proposed by the Father.
Background
The Father was born on (omitted) 1972 and is currently aged 44 years. He is employed as a (occupation omitted) working Monday to Friday from 6:00am to 2:00pm during daylight savings and otherwise from 6.30am to 2.30pm. The Father has re-partnered with Ms H. They do not cohabit. The Father remains living in the former matrimonial home which he has retained pursuant to consent orders made by Registrar Field after a successful Conciliation Conference.
The Mother was born on (omitted) 1975 and is currently aged 40. She is currently employed on a part-time basis working one day per week at (employer omitted) in (omitted). The Mother has repartnered with Mr F. Mr F lives in (omitted) where he owns his own home and owns and operates his own business.
The parties commenced cohabitation in 2005 and married on (omitted) 2006. The parties separated on 1 December 2014 when the Mother, X and Y left the former matrimonial home and moved into the maternal grandfather’s home in (omitted).
In January 2015 the Mother rekindled her relationship with Mr F. The Mother and Mr F had a five year relationship when the Mother was in her early twenties and living in (omitted). They broke up before the Mother met the Father. Mr F owns and runs a (business omitted) in (omitted). He (business omitted). He has a contract for (businesses omitted) in the (omitted)/(omitted) region.
When the parties first separated they attended for a meeting with their local minister. They agreed, albeit the Mother says she felt somewhat pressured in that agreement, that X and Y would spend each weekend with the Father as well as time with him after school each day.
As a result of the limited time she was having with X and Y under the agreement reached in December, in February 2015 the Mother advised the Father that she would commence having X and Y each alternate weekend. On the weekend of 15 February 2015 the Mother took X and Y to (omitted) where they were introduced to Mr F.
Since March 2015 the Mother, X and Y have travelled to (omitted) on most weekends that and school holidays when they are in the Mother’s care. They stay in the three bedroom home Mr F purchased in (omitted) in February 2015.
On 14 October 2015 the Father filed an Initiating Application seeking parenting and property orders.
On 23 November 2015 interim parenting orders were made which provided for X and Y to live with the Mother and spend time with the Father each alternate weekend from after school Friday to 7:00pm Sunday, from after school Wednesday to before school Thursday, from after school to 7:00pm Thursday, and week-about in the long summer vacation.
As noted, the parties resolved financial matters at a Conciliation Conference on 18 February 2016.
Despite the matter being listed for final hearing in the February 2016 circuit, the matter was unable to be heard as the ordered family report was not able to be prepared. The matter was then unable to be heard in the June circuit in Bendigo as Mr B, the report-writer, was unavailable due to ill health.
Interim orders were made in the February and June circuits setting out specific arrangements for term holidays and special occasions. Otherwise, X and Y’s living arrangements have continued in accordance with the November 2015 interim orders.
The Evidence
The Father
The Father relies on his Affidavits sworn 12 October 2015, 22 February 2016 and 30 May 2016. He gave viva voce evidence at the Final Hearing.
The Father also relies on the Affidavit of the paternal grandmother, Ms K, sworn 16 June 2016. Ms K was not required for cross-examination.
The Father is adamantly opposed to X and Y relocating to (omitted). It is his evidence that relocation will dramatically reduce the time he currently spends with X and Y and prevent him from being involved in their everyday routines, their school and kindergarten, as well as their major life events, such as birthdays and Christmas.
It is the Father’s evidence that X and Y are well settled and happy in (omitted). It is his evidence X is progressing well at (omitted) Primary School in (omitted) where he has many friends.
Both parties have extended family living in or close to (omitted). This includes the maternal and paternal grandparents, X and Y’s maternal and paternal aunts, uncles and cousins who see them regularly and the Father argues that relocation will dramatically reduce the time X and Y can spend with them.
It is the Father’s evidence that it is at least a four hour drive between (omitted) and (omitted) and that eight to nine hours in a car each fortnight would be unfair and exhausting for X and Y.
The Father is also concerned that if permitted to relocate with X and Y, the Mother will not facilitate their communication with him. It is his evidence that since the orders were made in November 2015 permitting phone communication between he and X in particular, the Mother has not allowed X any privacy when speaking with him.
It is the Father’s evidence that he believes that it is not in X and Y’s best interests to relocate out of the (omitted) area. It is the Father’s evidence that for X and Y not to be able to have regular weekly time with both parents, to be removed from their extended maternal and paternal families and for X to be removed from his school and many friends and community will be emotionally distressing for them.
Whilst conceding that prior to separation the Mother was X and Y’s primary carer given he worked full-time, it is the Father’s evidence he was very much a hands-on father as he finished work in the early afternoon. Since separation it is the Father’s evidence he has been more involved with X and Y and their daily activities than the Mother.
It is the Father’s evidence that whilst the Mother takes care of X and Y’s physical needs he is concerned she may not meet their emotional needs. When asked to expand on this, the Father explained that the Mother is a very practical person who likes doing jobs around the house and would prefer to paint a wall than cuddle X and Y.
When cross-examined the Father agreed with the observations of the report writer that X and Y, who have been travelling fortnightly to (omitted) and back for 18 months, are used to the travel and that there is no evidence that they have not coped with the long journey on alternate weekends.
The Father was asked if he had contemplated moving to (omitted) in the event X and Y are permitted to relocate there. It is the Father’s evidence that whilst he had considered such a move, he had rejected it. It is his evidence his parents are not in good health. His father recently had open heart surgery and suffers from diabetes and therefore his parents need his assistance at this time. It is also his evidence that his family and friends are all in (omitted) and that he has a solid job that he really enjoys. For these reasons, the Father would not consider leaving (omitted).
The Father agrees with the Mother that their communication is very poor and that they have no face-to-face communication, only using a communication book and occasionally text messages to confirm arrangements for the children.
The Father agrees that the mother would be very unhappy if not permitted to relocate and that her long-term happiness or unhappiness would have an impact on X and Y. It is the Father’s evidence however, that he believes the Mother will cope if she is required to remain in (omitted).
Ms K
Ms K is the paternal grandmother. She swore an affidavit in support of the Father on 16 June 2016. Ms K was not required for cross-examination.
Ms K deposes to the Father always having been a hands-on Father to X and Y and having a loving relationship with them. Ms K expresses real concerns about X and Y’s emotional wellbeing if relocation occurs because of the loss of the relationship and bond they have with the Father that such relocation would cause.
Ms K also expresses concern about the impact on X and Y’s relationship with she, their grandfather and the extended paternal family if relocation occurs because of the reduction in the time they would spend in (omitted) and with the Father.
The Mother
The Mother relies on her Affidavits sworn 18 November 2015 and
8 June 2016. She gave viva voce evidence at the final hearing.
The Mother also relies on the Affidavit sworn by her partner, Mr F.
It is the Mother’s evidence that she has always been X and Y’s primary carer. It is her evidence that it was and is she who attends to all X and Y’s medical, dental and educational needs. It is the Mother’s evidence she, X and Y have a close and loving relationship and she rejects the Father’s evidence that she is not emotionally available to them.
It is the Mother’s evidence that she wishes to relocate with X and Y to (omitted), where she, X and Y will live with Mr F in his three-bedroom home. It is her evidence that she wants to make a fresh start in (omitted) where, in addition to being able to live with Mr F, she believes there are better employment opportunities as well as better facilities, such as schools, medical services and support services for herself, X and Y.
It is the Mother’s evidence that she proposes X attend (omitted) Primary School in (omitted). It is the Mother’s evidence that X has a place in grade 3 at (omitted) School’s if relocation is permitted. (omitted) School’s is just two blocks from Mr F’s home. It is the Mother’s evidence that Y who starts kindergarten in 2017 would attend the kindergarten that is directly in the front of (omitted) School’s.
It is the Mother’s evidence that X and Y have a very good relationship with Mr F which has developed over the last 18 months as they have spent regular time with him.
It is the Mother’s evidence that X and Y have managed the regular travel between (omitted) and (omitted) over the last 18 months and that they will therefore be able to manage the travel necessary for them to spend regular time with the Father if permitted to relocate.
The Mother was asked when she would move to (omitted) if permitted to relocate. It is the Mother’s evidence she would like to move this coming weekend.
The Mother was asked if she thought it would be better for X if relocation occurred either at the end of the school term or the school year. It is the Mother’s evidence that she did not think it would be better for X to delay relocation. It is the Mother’s evidence that she has spoken to X’s current teacher and his proposed teacher at (omitted) School and that they have told her it would make no difference to X when relocation occurred.
It is the Mother’s evidence that she has spoken to X about the possibility of moving this weekend given the case was being heard this week. It is the Mother’s evidence that it is the current uncertainty about their future that is having a strain on X, rather than the prospect of an immediate relocation.
The Mother was asked whether X was aware of her desire to relocate. The Mother indicated X is aware of this. When it was put to the Mother it would be better not to include X in these discussions, it was the Mother’s evidence that X is not a boy you can spring things on and that he deals with change much better if he knows what is happening in advance so he has time to think things through. The Mother was adamant that she had not shown X the family report or any court documents, as, to quote her, “that is not appropriate”.
The Mother acknowledges that relocation will impact on X and Y. It is the Mother’s evidence she will do whatever is needed to lessen the impact on them and to this end it is the Mother’s evidence that she will not return to any form of paid employment until Y starts kindergarten and will not look for any form of full-time employment until Y is at school. It is also the Mother’s evidence that X and Y are resilient children who have managed the many significant changes in their lives that have occurred in the last 18 months.
The Mother acknowledges that relocation will impact on X and Y’s relationship with the Father. It is her evidence however that she believes her proposal for the time X and Y spend with the Father will enable them to retain their loving relationship with him.
The Mother agrees that X has not been able to FaceTime with the Father this year but explained this is because X’s iPad was dropped in water at the Father’s home and Facetime no longer works. The Mother said she would replace X’s iPad if the Father did not do so.
The Mother agrees that she and the Father do not communicate. She indicates this is because the Father refuses to talk to her and she has given up trying to engage him at changeover. It is her evidence the parties use a communication book and that she responds to the Father’s text messages if about the children but not when they are critical of her.
The Mother was asked how she would respond if relocation was not allowed. The Mother indicated she would have to cope but became visibly distressed when contemplating this possibility.
Mr F
Mr F is the Mother’s partner. He swore an affidavit on 2 August 2016 and gave viva voce evidence at the final hearing.
It is Mr F’s evidence that he loves the Mother, X and Y unconditionally and that whatever the result of the case, his relationship with the Mother will continue.
It is Mr F’s evidence that he has always lived in (omitted) and his family are based there as well. It is where he has his home and his business.
It is Mr F’s evidence that he has run his own business for over five years. It is his evidence that it would not be financially viable for him to move his business to (omitted), given it is only a town of 2,800 people, compared to the over 100,000 people that live in the (omitted)-(omitted) region.
Mr F impressed as a genuine and honest man whose commitment to the Mother and their relationship was very apparent from his evidence.
Mr B
Mr B is a Regulation 7 Family Consultant with the Federal Circuit Court. Mr B prepared a family report in this matter dated 17 May 2016. Mr B also gave viva voce evidence at the final hearing.
In his Family Report under the heading “Evaluation”, Mr B states the following in paragraphs (34) to (39):
34. Mr Sellers has been honest about the personal losses he has experienced via four significant relationships where his partner has left him on each occasion for someone else. His marriage to Ms Sellers was the first time he has had children to consider when their separation occurred, as the three other occasions were matters only between adults.
35. Consequently he is viewing Ms Sellers’ relocation matter with the children as providing him with another emotional loss, as he does not consider alternate weekends as being enough time to have a meaningful relationship with them. He has portrayed her desire to move to (omitted) as being both personal and selfish, as he does not believe she has considered what is best for the children. His concern is that they will be deprived of a substantial relationship with him and his extended family during the week and is worried about X changing schools when he is settled and happy at (omitted)’s in (omitted).
36. However the children have always been raised by their mother as their primary caregiver, with Mr Sellers working full time and assisting in the evenings and on the weekends. They find their emotional security in being with her and need her to be happy and settled in order to receive the parenting they need. While Mr F does not have children of his own, he has had experience raising a boy and a girl at different life stages during two of his past relationships. The children have spent the last sixteen months staying with him and their mother in (omitted) on alternate weekends and are used to the home environment they will be living in if they relocate.
37. Ms Sellers has previously been in a five year relationship with Mr F and has been able to resume her positive and meaningful connection to him for almost two further years. There is a stable base for them to be able to care for the children without their introduction being a destabilising force on their relationship. This would be likely if they were beginning a new relationship.
38. Although the drive between (omitted) and (omitted) is substantial at three and a half hours each way, the children are used to the drive having commenced doing it on alternate weekends since January 2015. There has been no evidence medically or from X’s school that they have not coped with the long journey on alternate weekends.
39. Ms Sellers has a close connection to her large extended family in (omitted) and is confident they will visit her and the children in (omitted) on weekends. She is prepared to travel to (omitted) for family functions on her alternate weekends with the children and stated that Mr Sellers is welcome to see the children for additional time on those occasions.
Mr B set out his recommendations under that heading in his report at paragraphs (40) to (42) as follows.
40.This matter is difficult to make a recommendations, as if the relocation takes place Y will experience a diminished relationship with her father while X was have to readjust his relationship to reflect seeing him less than any other time in his life. Mr Sellers will not be able to be involved with the children’s school life during the week
41. However the children have always been in their mother’s primary care and would benefit from her being in a settled and happy relationship. They do not have any relatives in (omitted) but will see their paternal relatives on alternate weekends. If they move to (omitted) they will see their maternal relatives when they visit and see them in (omitted) when there are family functions.
42. In having to make a decision in order to assist the parties and the Court, it is recommended that X and Y live in (omitted) with their mother and spend alternate weekends and half the school holidays with their father in (omitted).
In his viva voce evidence, Mr B confirmed his view that the Mother was and is X and Y’s primary attachment figure but that Y in particular, because of the considerable time she has spent with the Father since separation, has a close connection with the Father as well.
It is Mr B’s evidence that the practical reality of all relocation cases is the non-resident parent can no longer be involved in the day to day activities of the children, such as school, sporting events and the like and their time inevitably reduces to that which is proposed, in this case, by the Mother.
It is Mr B’s evidence that relocation and the diminution in the ability of the Father to be involved in the day to day activities of X and Y is such that the relationship that X and Y have with the Father will be compromised and their connection with the Father will be diminished.
While the Father will always remain “Dad”, it is Mr B’s evidence that the reality is Mr F will become the significant male figure in X and Y’s lives given they would mainly be living with he and the Mother.
It is Mr B’s evidence that he believes despite the parties’ inability to communicate, they have and will continue to support the other parent in having a relationship with X and Y. He notes that this is not the type of case where, if relocation were allowed, there would be ‘car troubles’ or ‘illnesses’ or ‘alleged financial difficulties’ raised as an excuse for time not taking place between X and Y and the Father.
Mr B was cross-examined in relation to the basis for his recommendation that X and Y be permitted to relocate to (omitted).
Mr B confirmed that the basis for his recommendation is as set out in paragraph (36) of his report, being:
·the Mother is X and Y’s primary caregiver and they will find their emotional security in being with her and for her to be happy and settled in order to receive the parenting they need; and
·the risk factors associated with relocation, being a new school and community and a move away from the Father, are mitigated by the Mother’s prior relationship with Mr F and the considerable time spent by X and Y with Mr F in the last 20 months.
In addition, Mr B’s evidence is his recommendation was also supported by his belief that X and Y will maintain their connections in (omitted) with extended family and friends by regular visits with the father and because of the Mother’s evidence she will be regularly visiting (omitted) to see her family, who will also regularly visit (omitted) to see she, X and Y.
It was put to Mr B that a parent does not need to be happy to parent well. Mr B agreed with that proposition and indicated that the use by him of the term “happy” in paragraph (36) of his report was perhaps inaccurate. Mr B indicated rather than the word “happy”, the better description of the Mother if relocation is allowed is she would be settled, well adjusted and leading a life she wants to lead and is content with.
It is Mr B’s evidence that in coming to his recommendation he considered the negative impact on X and Y’s relationship with the Father against the impact on the Mother’s parenting if not permitted to relocate and determined that, albeit very marginally, it would be in X and Y’s best interests for relocation to be allowed.
The Legal Approach
In this matter the Mother is seeking to relocate with the parties’ children, X and Y, from (omitted) to (omitted) to live with her partner Mr F.
Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear, however, that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is, by following the legislative framework prescribed under the Family Law Act 1975 (Cth) (‘the Act’) to determine what order is in the child’s best interests.
In Taylor v Barker [2007] 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:
When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002
) 211 CLR 238; 191 ALR 289; 29 Fam LR 74;
(2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:
A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case.
Best Interests of the Child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1. The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph 104 reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104
His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:(a)s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.
In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:
(i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);
(ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in
s60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;(iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC
93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);(iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
There is no doubt that X and Y have a close, loving and meaningful relationship with both of their parents. X and Y love and are loved by both of them.
Relocation, if allowed, must out of necessity reduce the time X and Y spend with the Father. It is Mr B’s evidence that this will diminish the relationship that currently exists between X and Y and the Father.
It is Mr B’s evidence that the strength of the relationship X and Y have with the Father is such, despite Y’s relatively young age, that it will remain a meaningful one in that it will be important, significant and valuable to them even if not an optimal relationship in the event relocation is allowed.
Section 60CC(2)(b): the need to protect the child from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence
This subsection is not relevant as X and Y are not at risk of physical or psychological harm or of being exposed to abuse, neglect or family violence from either of the parties who are loving, caring and devoted to X and Y.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in X and Y’s best interests.
Each of the matters set out under that section will be considered in turn where applicable to this matter.
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.
When speaking to Mr B, X was not prepared to express any views as to whether he wishes to relocate or stay in (omitted).
It is Mr B’s evidence that a child of X’s age is very concerned to be fair to both parents and it is therefore not at all surprising or unusual that X did not want to “pick a side”.
It is clear however that X is very much aware that his Mother wants to relocate with he and Y to (omitted) and that his Father does not want he and Y to go. He must feel very much “the meat in the sandwich” whilst this matter remains unresolved.
Given Y’s very young age her views were not canvassed.
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 grandparents or other relative of the child).
As has been set out in this judgment, X and Y have a close and loving relationship with both of their parents.
It is Mr B’s evidence that it is to the Mother that X and Y have their primary attachment given she provided their primary care up to separation. Upon separation X and Y spent a period of shared care with both their parents until November 2015 when orders were made that resulted in them living with the Mother and spending significant and substantial time with the Father. Because of this they are very close to the Father as well.
X and Y also have a close and loving relationship with their extended paternal and maternal families. Prior to separation, X and Y were cared for by the paternal grandmother when the Mother worked one day a week. Since separation, X and Y together with the Mother have lived, when in (omitted) with the maternal grandfather.
Both parties have siblings, nieces and nephews in (omitted) who X and Y spend time with regularly.
X and Y also have a positive relationship with Mr F given they have spent every second weekend with him as well as holiday time.
The Mother reports X and Y call Mr F “(omitted)”, a name that Y has given him.
X and Y also have a positive relationship with the Father’s partner, Ms H.
In the Family Report prepared by Mr B, he records that X told him that Mr F is “funny and nice” and that “he is a good person”. X described Ms H as “funny, kind and nice and a happy person”.
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 parties have fully participated in X and Y’s lives.
Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
I'm satisfied both parties have properly maintained X and Y.
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 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 and Y are permitted to relocate to (omitted) with the Mother, it must reduce the time they spend with the Father and extended paternal and maternal families. It will reduce the capacity of the father to easily participate in X and Y’s activities outside of weekend time, including school events, mid-week sporting events and extra-curricular activities.
This reduction in time will, as is Mr B’s evidence, impact on and diminish the current relationship X and Y have with the Father and the extended paternal family because of the reduction in time they spend with them and the lack of regular involvement in their day-to-day activities.
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.
(omitted) is a three and a half to four hour drive from (omitted), which as a matter of practicality reduces the time X and Y can spend with the Father and the extended paternal and maternal families if relocation is permitted to weekend and holiday time only.
Somewhat unusually in this matter, X and Y have been making this journey on a fortnightly basis since February 2015. For 18 months every second weekend when they are in the Mother’s care they have driven to (omitted) to be with Mr F.
It would appear that X and Y have adapted to this fortnightly travel with aplomb and they manage the long trip well with there being no reports by the parents or X’s school teacher that X and Y find this level of travel to be arduous.
It is submitted on behalf of the Father that his proposal, which would see X and Y remain in (omitted) with a slight increase in the time that X and Y spend with him would have no practical effect on X and Y’s ability to spend time with their parents. This is unlike the Mother’s proposal of relocation which entails significant practical and emotional changes for X and Y, including the loss of time with the Father and extended family, a change of school and the loss of the community the children have lived in all their lives.
Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs
The parties in this matter clearly have the capacity to meet X and Y’s emotional and intellectual needs and have done and are doing so.
It is submitted on behalf of the Father that there is no suggestion or evidence that the Mother’s capacity to parent X and Y or provide them with the level of care she currently does will be impacted if she is not permitted to relocate.
It is submitted on behalf of the Father that given the mother’s evidence that her mental health is “terrific” despite the strain of litigation and the 20 months she has spent in limbo, she will cope if relocation is not allowed and will continue to be the good parent that she is.
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
Y is four and a half. The Father expresses a real concern that given her young age and their very close relationship, relocation will dramatically diminish her relationship with him.
X is eight and therefore able to better maintain a long-distance relationship with the Father if relocation is allowed. It is submitted on behalf of the Father, however, that he would have to adjust that relationship with the Father to one where he sees him less than he currently does.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The parties in this matter are loving, responsible and caring parents.
The only concern in this matter about the parties’ parenting is their current inability to communicate. It is apparent the Father was deeply hurt by the parties’ separation and the Mother’s almost immediate resumption of her relationship with Mr F and her resultant wish to relocate to (omitted) with X and Y.
It is the Mother’s evidence the Father refuses to speak to her, even when she tries to speak to him politely at changeover and that she has now given up trying to speak with him. It is her evidence that the parties currently use a communication book and the occasional text message.
In paragraph (32) of his Family Report, Mr B sets out X’s concerns about the lack of communication between his parents as follows:
X admitted he is worried about his parents not being able to talk and having to communicate with each other through a book they keep in a black bag. He stated he is concerned that if he moves to (omitted) with his mother it will make their communication worse, as his father does not want them to go. X stated ‘I don’t want to upset my Mum or my Dad.’
It is of real concern that X is aware of the parties’ lack of communication and he is concerned it will only get worse. He should not be burdened by the parties’ inability to put their responsibilities as parents ahead of their current adult conflict.
Whilst both parties attended a brief post-separation program in (omitted), it clearly has had little impact on them.
The Mother through her Counsel expressed a willingness to engage in a more extensive post-separation parenting program or any other therapy to help improve the parties’ communication. No such willingness at this time was expressed by the Father.
Whatever the decision in this case and whichever parent is devastated by the outcome, as one of them must be, it is vital that going forward the parties address their current communication impasse. They have many, many years of parenting ahead of them, and if they do not learn to better communicate it will be X and Y who will suffer.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family.
Not relevant.
Section 60CC(3)(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.
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
Were it not for the question of relocation, it is probable these parties would not have needed the Court’s assistance given the quality of their parenting and their relationship with X and Y. It is hoped that the determination of this issue will see the end of litigation between the parties.
Section 60CC(3)(m): any other factor or circumstance that the Court thinks is relevant
If permitted to relocate, the Mother indicated her wish to do so immediately.
When this proposal was put to Mr B, he was asked whether there needed to be a more stepped approach to the relocation to minimise the disruption to X and Y and to enable them to more easily manage the changes relocation entails.
It is Mr B’s evidence that X and Y have been preparing for the decision on relocation to be made for 20 months and some “arbitrary timing” of the relocation will not make the relocation more manageable for them.
Mr B quite properly notes that if X and Y’s parents are not stressed, or do not show their stress in relation to the relocation to X and Y then X and Y will not be stressed either and will be able to better manage the changes relocation entails.
Presumption of Equal Shared Responsibility
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
Both parties in this matter seek that the Court make orders they have equal shared parental responsibility for X and Y.
As set out in this judgment, the parties in this matter are caring, loving and committed parents who I believe put X and Y’s best interests at the forefront of their actions. As such it is clearly in X and Y’s best interests that the parties have equal shared parental responsibility for them going forward.
Both parties do however concede they have very real problems with their communication. Given X and Y’s young ages, there are many important milestones and decisions that will need to be traversed going forward. It will be vitally important for X and Y that the parties work to improve their current communication so they can jointly make the best decisions for X and Y.
To that end, an order will be made for the parties to undertake a Parenting Orders Program. As there is no such program available in (omitted)/(omitted), the parties may need to travel to (omitted) to do so.
Consideration of Equal Time or Substantial and Significant Time
Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time with each parent.
Section 65DAA(1) provides as follows:
1. If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65DAA(2) and (3) of the Act provide as follows:
2. If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between section 60CA, section 61DA(1) and section 65DAA of the Act.
In MRR v GR (supra), the High Court held at paragraph 9:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", [i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.
The High Court then held at paragraph 13:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court further held at paragraph 15:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”
Thus, the Court must consider not only whether it is in the child’s best interests to spend equal or significant and substantial time with each of their parents but also whether it is reasonably practicable for the child to do so.
The Father is seeking orders that X and Y remain in (omitted) and there be an increase in his time to what would be in all practicality an eight/six arrangement (albeit his ultimate preferred position is for X and Y to live in his primary care).
The Mother seeks orders that if relocation is not allowed, the current arrangements continue.
Both such proposals would result in X and Y spending significant and substantial time as defined in section 65DAA(3) of the Act.
In the event the Mother is permitted to relocate to (omitted) with X and Y, the distance between (omitted) and (omitted) would make orders for significant and substantial time as defined by the Act impractical. The Mother’s proposal of alternate weekends, holiday time and special occasions would however allow regular and consistent time between X, Y and the Father.
Conclusion
What makes relocation cases amongst the most difficult to determine is that in the majority of relocation cases the Court is dealing with two loving and caring parents who have close relationships with their children. They would but for the relocation issue not come before the Court as they are able to put in place suitable arrangements for their children in a child-focussed and appropriate way after separation.
An application for relocation brings into play the tension between a parent’s right to move on with their lives after the breakdown of a relationship, be that with a new partner or to pursue new employment opportunities and to do so in the location of their choice, against the impact that choice would have on the relationship their children have with both parents.
In matters where children have spent considerable time in the care of both parents after separation, the relocation of one of those parents must impact on the time they are able to spend with the parent they do not live with and the depth of that relationship.
This is such a matter.
X and Y have two loving, caring, competent parents.
The Mother very shortly after separation re-partnered with Mr F, someone she had a relationship with in her twenties. There is no doubt theirs is a committed relationship and that they both want to spend their lives together going forward.
Mr F lives in (omitted) where he owns a home and has his own business. I am satisfied that if required to move to (omitted) he would not be able to relocate his business as it would not be financially viable for him to do so. Whilst Mr F expressed a willingness to do whatever is necessary to continue his relationship with the Mother, a move to (omitted) would see him lose his home and business and require him to move away from his family and friends.
The Mother wishes to relocate to (omitted) with X and Y to start her future life with Mr F. While she speaks of better schools, medical facilities and employment opportunities as being part of her reasons for moving to (omitted), they are secondary to the main reason she wants to move, which is her wish to live where Mr F lives. I do not criticise the Mother for this.
The practical reality of the Mother relocating with X and Y in they cannot spend the significant and substantial time they currently do with the Father and have done since separation because of the some 320 kilometres distance between (omitted) and (omitted).
If relocation is allowed, the current relationship X and Y have with the Father must alter and diminish because of the reduction in the time they can spend with the Father, particularly during the week.
As set out in this judgment, the decision in a relocation is no different to that in any parenting case, that is, it must be determined on the basis of, in this case, what is in the best interests of X and Y.
In his Family Report and viva voce evidence Mr B expressed the view that the best interests of X and Y would be met by allowing them to relocate with the Mother to (omitted).
It is Mr B’s evidence that he formed this view because he was satisfied that X and Y’s emotional security would be better met if the Mother, as their primary caregiver was living in circumstances where she was settled, well-adjusted and leading the life she wants to lead and is content with.
It was submitted on behalf of the Father that it was Mr B’s evidence that the “optimal outcome” for X and Y is, as it is for most children with separated competent parents, for their parents to live in close proximity to each other so that the children can have the benefit of both parents being involved in all aspects of their lives.
It was therefore submitted on behalf of the Father that if such an “optimal” outcome can be achieved for X and Y it must be seen to be in their best interests. It was further submitted that the optimal outcome for X and Y is that they remain in (omitted).
There is no doubt that the ideal outcome for X and Y is for their parents to live close to each other but in real life the ideal is not always achievable.
Whilst the Mother would no doubt “cope” if required to remain in (omitted), the distress and unhappiness this would cause her was very apparent when she was giving her evidence.
Similarly, I acknowledge that the Father would be equally distressed and unhappy if relocation is allowed.
Mr B spoke of his recommendation that relocation be allowed as being “marginal”.
I too find this a most difficult case to determine.
However, having considered all of the evidence of this case I have formed the view that when considering the impact on the Mother as X and Y’s primary carer, if she is not able to relocate on her emotional wellbeing and long-term parenting capacity against the impact on the relationship that X and Y would have with their Father if relocation is allowed, like Mr B, I am of the view that it is in X and Y’s best interests that they be permitted to relocate with the Mother to (omitted).
I am satisfied that X and Y will be able to maintain, whilst not an optimal relationship, a meaningful, loving and close relationship with the Father and their extended maternal and paternal families. The Mother will be able to move on with her life with the partner she loves and achieve the happiness and security which will ensure she is able to parent X and Y to the very best of her ability.
It is the Mother’s evidence she will relocate this weekend if relocation is permitted. It is the Mother’s evidence X’s teachers see no reason to delay relocation.
Mr B expressed the view that to set some future “arbitrary” date for relocation, such as the end of term or the end of the school year will not assist X and Y to better manage the changes relocation causes as X and Y have been preparing for relocation for twenty months.
Whilst Mr B’s evidence that there is no reason to delay relocation, I am of the view that X in particular should be given the opportunity to have at least next week at his current school to enable him to participate in his book parade and to say goodbye to his friends.
It will be vital that X and Y are able to speak frequently with the Father whether that be by phone, FaceTime, Skype, Viber and the like upon relocation. It would appear X’s iPad is damaged. It will be very important this is repaired or replaced before he relocates so he knows he will be able to chat with his Dad every day without problem. I suggest as a gesture of goodwill, the Mother attends to this forthwith.
The parties are in agreement that if relocation is allowed orders be made in the terms of the proposal attached to the Mother’s Outline of Case with some minor alterations as to the time of changeover at the end of X and Y’s alternate weekends with the Father, as well as the arrangements for Father’s Day and Mother’s Day.
Orders will be made in the terms agreed by the parties with an additional order for the parties to attend a Parenting Orders Program to assist them in improving their communication so they can better parent X and Y.
The Father and his family will understandably be most distressed by this decision. It will be vitally important however for X and Y and their ability to settle in (omitted) that the Father, to the very best of his ability, supports their move and reassures them that he will continue to love them and to be a major, vital and important part of their lives.
I certify that the preceding one-hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 2 September 2016
Key Legal Topics
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Family Law
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Injunction
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