STRINGER & NISSEN

[2019] FCCA 1159

FEDERAL CIRCUIT COURT OF AUSTRALIA

STRINGER & NISSEN [2019] FCCA 1159

Catchwords:
FAMILY LAW – Parenting – interim hearing – parental responsibility – whether the mother be permitted to relocate the child’s place of residence – allegations of family violence.

Legislation:

Family Law Act 1975 (Cth), ss.10J, 60B, 60CA, 60CC, 61DA, 65DAA, 67Q

Cases cited:

C and S [1998] FamCA 66

Goode & Goode (2006) FLC 93-286

Godfrey & Sanders [2007] FamCA 102

Mazorski & Albright [2007] FamCA 520

Morgan & Miles (2008) Fam LR 275

Marvel & Marvel (2010) 43 Fam LR 348

MRR v GR (2010) FLC 93-424

Deiter & Deiter [2011] FamCAFC 82

George & George [2013] FamCAFC 182

Eaby & Speelman (2015) FLC 93-654

Banks & Banks (2015) FLC 93-637

Bondelmonte & Bondelmonte (2017) FLC 93-763

Applicant: MS STRINGER

Respondent: MR NISSEN

File Number: SYC 1926 of 2019

Judgment of: Judge Morley

Hearing date: 4 April 2019

Date of Last Submission: 4 April 2019

Delivered at: Sydney

Delivered on: 5 April 2019

REPRESENTATION

Solicitors for the Applicant: Mr Hertz of John Hertz & Associates

Solicitors for the Respondent: Ms Naidoo of Legalworks

ORDERS

1. That the parties have equal shared parental responsibility for the child [X], born … 2014 (“the child” or “[X]”).

2. That in the event that the mother returns to live in the Town A Shire of New South Wales, then the mother’s solicitors will confirm to the father’s solicitors in writing that she is so residing, and within 72 hours of such notification, the father will deliver the child to the mother at the car park of the McDonald’s family restaurant at B Street, Town A, at a time arranged between them.

3. That in the event that the mother lives in the Town A Shire of New South Wales, and in that event, following compliance by the parties with order 2:

   (a)The child will live with his mother;

   (b)The child will spend time with his father as follows:

   (i)Every Tuesday from 4 pm until Wednesday 4 pm;

   (ii)Each alternate weekend from Friday at 4 pm until Sunday at 4 pm;

   (c)On the child’s birthday and on the father’s birthday, if not already falling on a day on which the father is spending time with the child, for a period of three hours at a time to be agreed between the parties, and in default of agreement, from 4 pm until 7 pm.

   (d)On Father’s Day, if not already falling on time being spent between the father and the child, from 4 pm on the Saturday immediately preceding Father’s Day until 4 pm on Father’s Day.

   (e)From 4 pm on 24 December 2019 until 2 pm on 25 December 2019.

   (f)At other times as may be agreed between the parties.

   (g)By communication between the child and the father by video call/telephone call each Monday and Thursday when the child is not in the father’s care between 6.30 pm and 7 pm, to be facilitated by the father telephoning to the mother’s mobile telephone, and in this regard the mother is to ensure that the child is available to speak privately with the father.

   (h)All changeovers in relation to the time spent by the father with the child will occur in the car park at the McDonald’s family restaurant at B Street, Town A.

4. The mother is restrained from relocating the child’s primary place of residence away from the Town A Shire area of New South Wales.

5. That in the event that the mother continues to reside outside the Town A Shire of New South Wales, then:

   (a)The child will live with his father.

   (b)The child will spend time with his mother from 12 noon on the first Monday of every month until 12 noon on the second Monday of every month, commencing 6 May 2019.

   (c)The child will spend time with the mother on the child’s birthday and on the mother’s birthday, the time to be agreed between the parties and failing agreement between 4pm and 7pm; 

   (d)The child will spend time with the mother from 4pm on the Saturday preceding Mother's Day until 4 pm on Mother's Day; 

   (e)The child will spend time with the mother from 4pm on 24 December 2019 until 2pm on 25 December 2019; 

   (f)The child will spend time with the mother at all other times as may be agreed between the parties; 

   (g)The child shall communicate with the mother by telephone each Monday, Friday and Saturday when the child is not in the mother’s care between 6.30pm and 7pm to be facilitated by the mother telephoning the father’s mobile telephone, and the father is to ensure that the child is able to speak privately with the mother.

   (h)For the purpose of changeovers, all such changeovers shall occur at the car park of the McDonald’s family restaurant in B Street, Town A.

6. That each parent shall keep the other advised of their current residential address and contact telephone number, including landline if they have one, and advise the other parent of any change to these details within 48 hours of such change occurring.

7. That each parent shall notify the other of any medical treatment to be received by the child and the name of the treating doctor as soon as practicable.

8. That each parent shall be entitled to obtain directly from any health or welfare professional or any other professional attended by the child copies of any reports, notices, or other relevant verbal or written advice affecting the health or welfare of the child, and for this purpose each of the parents shall notify the other of the names and contact details of any relevant health or welfare professional attending the child.

9. That each parent shall notify the other as soon as reasonably practicable of any emergency involving the child.

10. That each parent is at liberty to attend all preschool functions and extracurricular activities in which the child is involved.

11. That both parties are restrained from conveying the child in any vehicle unless they hold a valid driver’s licence for driving that vehicle. Both parties are to ensure that the child is not conveyed in any vehicle driven by a person other than a parent of the child who does not hold a valid driver’s licence for driving that vehicle.

12. That the child is to be in a lawful child restraint whilst being conveyed in any vehicle.

13. That both parties are restrained from consuming alcohol at all while the child is in that parent’s care, and for a period of 24 hours before the child comes into that parent’s care.

14. All extant applications be adjourned to this Court on 26 June 2019 at 9:30am for directions.

15. Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the date of the directions hearing will not be heard on that date without the express leave of Judge Morley, however directions in respect of that Application or Objection may be given.

16. The matter is listed for further mention and directions consequent upon the release of the family report on 20 April 2020 at 9:30am.

17. Pursuant to section 68L, an independent children’s lawyer is appointed for the reasons and with the ancillary orders as set out in the form that will be exhibit A to these orders. 

18. Pursuant to section 13C of the Family Law Act 1975, the parties and each of them will forthwith and within seven days contact a family dispute resolution practitioner agreed upon between them for the purpose of arranging and attending the first available and offered intake appointment for their assessment of suitability for further family dispute resolution, mediation, and subject to the assessment of suitability, each party shall then:

    (a)attend at such times, dates and places as may be advised;  and

    (b)pay such fee as may be charged to participate in and complete family dispute resolution, mediation prior to the next Court event.

19. Pursuant to section 62G, is a report is to be prepared for the Court by a family consultant nominated by the manager of Child Dispute Services in accordance with what will be Exhibit B to these orders.

20. The Court notes that on the adjourn date of 26 June 2019 at 9.30 am, the Court requires the parties with legal representative, albeit as agent if necessary, to be present before the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1926 of 2019

MS STRINGER

Applicant

And

MR NISSEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings commenced by Initiating Application filed on behalf of the Applicant mother, Ms Stringer, on 27 March 2019, and coming on before the Court for interim consideration on an urgent basis. 

2. The Respondent father filed a Response to application for final orders by eFiling on 3 April 2019.  Each party filed an affidavit in the proceedings as will be detailed hereunder.  The Respondent father is Mr Nissen. 

3. The proceedings concern parenting arrangements for the child of the relationship between Ms Stringer and Mr Nissen being [X] born … 2014. 

4. The issues in the proceedings are in principle where the child [X] will live and with whom and consequent upon with whom he will live, when he will spend time with the other parent.

Background

1. The mother was born on … 1971 and the father was born on … 1968.  The parties agreed that they married on … 2014 and the parties agree that they separated on a final basis on 14 February 2015.

2. At the time of the parties’ separation, the child [X] was six months of age.  At the time of separation, [X] remained principally living with his mother and spent time on a somewhat ad hoc basis over the years with his father. 

3. The parties had been separated coming up to this interim hearing for a period of four years and two months.  During that time, as stated above, the mother has had principal care of [X].  Following separation, both parents continue to live in the Town A Shire in New South Wales, which is the area in which their relationship had taken place.

4. On 19 February 2019 the mother relocated her place of residence and that of [X] from the Town A Shire to Suburb C in the Greater Sydney area. 

The Evidence

1. The mother filed her Initiating Application on 27 March 2019. In that Application she sought final and interim orders. By way of interim orders, the mother sought, in effect a recovery order on an ex parte basis pursuant to section 67Q of the Family Law Act 1975.

2. The mother sought further interim orders to the effect that she have sole parental responsibility for [X], that she be permitted to relocate [X]’s place of residence to Sydney, that [X] live with her, and that [X], in effect, spend a period of eight days each month for the period April 2019 through to January 2020 with his father, with the changeover for those occasions taking place at Town D in New South Wales. 

3. Further, the mother sought an order that the father and [X] be able to communicate by WhatsApp on Tuesdays and Thursdays between 7 pm and 7.30 pm and that when the child is spending time with his father he be able to communicate with the mother by WhatsApp also on Tuesday and Thursday between 7 pm and 7.30 pm.

4. The mother sought some other interim orders for exchange of information.

5. The father in his Response sought final orders, though not stated with any precision, for equal shared parental responsibility and seeking to be excused from stating any other final parenting orders with precision until the filing of an Amended Response.

6. The father sought interim orders that the parties have equal shared parental responsibility for [X] and that in the event that the mother lives in the Town A Shire in New South Wales, [X] live with his mother and spend time with his father from Tuesday 4 pm until Wednesday 4 pm each week, and each alternate weekend from 4 pm Friday until 4 pm Sunday.

7. The father sought orders for additional time with [X] on special occasions such as the child’s birthday, Father’s Day, the father’s birthday and the Christmas period.  The father sought to communicate with [X] by video call or telephone each Monday, Friday, and Sunday, when [X] is not in the father’s care between 6.30 pm and 7 pm. 

8. The father sought interim orders that in the event that the mother lives in Sydney, [X] live with him and spend time with his mother until he starts school in the year 2020 from 12 noon on the first Monday of every month to 12 noon on the second Monday of every month commencing 6 May 2019, and on special occasions, being the child’s birthday, the father’s birthday, and one might presume he intended the mother’s birthday, and during the Christmas period.

9. The father seeks an interim order that the child communicate with his mother each Monday, Friday and Sunday between 6.30 pm and 7 pm when not in his mother’s care, and that changeovers take place at McDonald’s in Town A.  The father sought a further interim order that the mother be restrained from relocating [X]’s primary place of residence from the Town A Shire.

10. At interim hearing the mother relied on her affidavit sworn 26 March 2019.  In that affidavit, the mother gives her evidence of the dates of commencement and conclusion of the parties’ relationship and detail of the birth of [X].  The mother asserts that she had primary care for [X] throughout the whole period of time since his birth. 

11. The mother asserts in her evidence that following separation in April 2015 the parties attended a mediation in which an agreement was reached that the father would spend time with [X] each Tuesday 4 pm until Wednesday 4 pm, and each alternate weekend from 4 pm Friday until 4 pm on Sunday. 

12. It would seem that for much of the time between the parties separation on 14 February 2015 and 19 February 2019 there was a pattern of time the father spent with [X] subject to occasions when the father deposes in his affidavit evidence that the mother withheld [X] from him at those times, and also subject to the father’s evidence in his affidavit that there were occasions outside of those times when, at the mother’s request, he cared for [X] for other, and on occasion, more extensive periods.

13. In the mother’s affidavit she adverts to evidence of what may be referred to as certain risk factors such as, in paragraph 7 thereof, her assertion that the father has a history of abusing alcohol and that the father has a history of driving offences leading to his loss of license on two occasions in two years, including for driving under the influence of alcohol.

14. There is no evidence before the Court at this time by way of COPS entries or criminal record entries or driving record entries.

15. In paragraph 8 of the mother’s affidavit she refers to being aware from recent conversation between herself and the father, that the father is currently subject to a community service order, but she deposes that she is not aware of why that has come about.

16. In paragraph 9 of the mother’s affidavit, she refers to certain matters under a heading ‘My Concerns About the Safety of [X] and Myself’.  In that regard, the mother attaches to her affidavit as Annexure B, a statement given by the mother to police, and dated 6 January 2019, in which she details in various paragraphs, in this regard she refers specifically in her evidence to paragraphs 7 and 8 and paragraphs 13, 20, 22, 25, 26, 27 and 28, of assertions of family violence towards her, and on occasions in the presence of the child, by the father.

17. I note at this point that the practice of attaching police statements or witness statements to affidavits as annexures is to be avoided in the interests of the weight of the evidence.  Annexing a document to an affidavit does not, in any way, provide sworn evidence of what is contained in the annexed document.  Attaching a document to an affidavit does not render any of the contents thereof sworn truth in the context of the affidavit, as, for example, when a letter from the opposing party’s solicitors is annexed in the course of correspondence to an affidavit, statements in that document made on behalf of the other party are, of course, not sworn to as the truth by the deponent to the affidavit.

18. In paragraph 10 of the mother’s affidavit she deposes to the matters surrounding her relocation to Sydney on 19 February 2019 with [X].  The mother indicates in paragraph 10.4 that she did not give the father advanced notice of her intention to relocate and she asserts that the reason for the same was that she was frightened of what he may do to her and to [X].  Presumably, the mother is basing that assertion of fear on the matters adverted to by her in the referred to paragraphs in her police witness statement, being Annexure B to her affidavit. 

19. She indicates in that paragraph that on 19 February 2019, being the date that she left the Town A area to relocate, she sent the father an email informing him of the relocation to Sydney and putting a proposal for his spending time with [X] in the context of that move. The mother annexes a copy of that email as Annexure F to the affidavit.

20. The mother then deposes that there was no time between the father and the child until arranged time began on 13 March 2019 when, by arrangement between the parties, they met at Town D and [X] was provided by the mother to the father to spend time with him, by agreement, between 13 March 2019 and 21 March 2019. 

21. The mother goes on in her evidence to depose that on 21 March 2019 she was not able to recover [X] from the father but rather received a text message from him at 11.06 am on 21 March 2019 informing her that the father would not be at the changeover that day, presumably also meaning that [X] would not be at the changeover that day.  The mother deposes that she then began taking steps to commence these proceedings. 

22. Further in her affidavit the mother refers to her relationship with Mr E who has a home at Suburb F in Sydney.  The mother indicates that she herself and Mr E are in a committed relationship but have not commenced to cohabit, but that the same is in their future plans.

23. The mother indicates in her affidavit that on moving to Suburb C in the Sydney area, she began residing in a home owned by her brother and sister-in-law. The mother indicates in relation to her financial circumstances that she does not pay rent to her brother for residing in his home and that she does not currently receive any child support from the father in relation to [X].

24. The mother annexes to her affidavit marked ‘L’ a letter dated 2 August 2018 from the Department of Human Services confirming that the current assessment in relation to child support is for nil payment from the father to the mother. The mother indicates that she has lodged an objection to that assessment. 

25. The mother goes on to indicate that [X] will be old enough to attend kindergarten in 2020, being by that time five and a half years of age, and that on relocating to Suburb C area in Sydney, she had enrolled [X] in the School G, a preschool at Suburb F. 

26. The mother indicates that she has two children from a previous relationship: Mr H, currently aged 22 years of age, and Mr J, currently aged 20 years of age.  In her evidence she deposes that whilst [X] resides with her in Town A, he saw his brothers once a week and they shared a weekly meal together at the mother’s home. 

27. In relation to the mother’s options for accommodation in Town A, should she return to Town A by choice or as consequence of any orders the Court may make in relation to where [X] is to reside, her mother lives in Town A, but she does not elaborate. The mother refers only in paragraph 14.3 of her affidavit that she loves her mother dearly but they have very different personalities and her mother loves all her grandchildren. 

28. Unfortunately, the mother’s affidavit does not contain any other detail in relation to her financial circumstances as to details of her actual income and likely expenses or any other evidence in relation to options available to her or options not available to her, if she were to return to live in Town A. 

1. The father relied at interim hearing on an affidavit sworn by him on 3 April 2019.  In that document, after confirming the basic detail of the relationship as put by the mother, he indicates that he also has a child from a previous relationship, a son named Mr K who is aged 24 years. 

2. The father indicates that following the parties’ separation and starting from 27 February 2015, [X] spent time with him each Tuesday night and most weekends from Friday until Saturday, or Saturday until Sunday, or Saturday until Monday.  The father also deposes that for a period of time he also saw [X] almost every day by going to see him after work or at lunchtime or between jobs.

3. The father then gives evidence of difficulties that he asserts he encountered in being able to spend regular time with [X] through the beginning of 2016 and deposes that on 20 April 2016 the parties attended a face-to-face mediation at the Family Relationship Centre in Town L. 

4. The father annexes to his affidavit as Annexure B a copy of a section 60I certificate issued by the Family Relationship Centre, and in turning to that document I note that the applicable paragraph is paragraph (e) which indicates that the father and the mother began attending family dispute resolution with the family dispute resolution practitioner but that the practitioner considered having regard to the matters mentioned in sub-regulation 25(2) that it would not be appropriate to continue the family dispute resolution.

5. The father gives some evidence of matters transacted at the mediation, and I do not go into that evidence pursuant to section 10J of the Family Law Act which prohibits the giving of evidence or the receiving into evidence of any communication occurring at family dispute resolution or mediation. 

6. The father indicates, and it is admissible, that as a result of the mediation a parenting plan was drawn up and he annexes to his affidavit as Annexure C a copy of the asserted parenting plan.

7. Pursuant to that plan, at handwritten paragraph 1(a), [X] was to spend time with his father every Tuesday 4 pm to Wednesday 4 pm and each second weekend from Friday 4 pm until Sunday 4 pm. 

8. Further, under subparagraph (b), both parties agree to some flexibility for other times as mutually agreed in advance. Unfortunately, subparagraph (c), pick up and drop off was to be at Town A Police Station.  The father deposes in paragraph 44 of his affidavit that following the taking up of time pursuant to the parenting plan, he only had additional time with [X] when the mother was busy or when [X] was sick and the mother could not take care of him.

9. The father deposes in paragraph 58 of his affidavit that during or about early 2017 the mother made frequent trips away sometimes leaving [X] with the father on short notice.  The father then goes on to give some detailed evidence in the succeeding paragraphs of occasions when he had more extensive time with the child, and gives some evidence of asserted difficulties in relation to his time with the child, those difficulties being, he asserts, caused by the mother. 

10. The father deposes in paragraph 98 of his affidavit that on 31 January 2019 the mother informed him that she wanted [X] to be enrolled in the kindergarten program at School M.  I presume that School M is a school in the Town A Shire.  The father advised the mother that he would not be signing any documents until they had discussed [X]’s education. 

11. The father deposes that the last time he had any contact with [X] before the relocation to Sydney on 19 February 2019 was an occasion on 3 February 2019 and he deposes in confirmation of the mother’s evidence that at no time prior to the relocation day did the mother inform him that she was relocating herself and [X] to Sydney. 

12. The father deposes that the first time he received notification that the mother had relocated herself and [X] to Sydney was on 19 February 2019 when he received an email.  Importantly, in paragraph 103 of the father’s affidavit he deposes:

    Although I did not consent to the relocation, I was prepared to accede to Ms Stringer’s request to travel to Town D, New South Wales, for a changeover. 

13. In that regard, I presume that the father is referring to the occasion that was arranged between the parties subsequent to the changeover which is not mentioned prior to the paragraph, when it was arranged for the father to spend time with the child from 13 March 2019.  The father deposes that he picked up the child at Town D on 13 March 2019. 

14. The father does not give any evidence of the precise arrangements that the mother asserts were made between the parents for the father to spend time with the child between 13 March 2019 and 21 March 2019, merely deposing, as I have said, in paragraph 106, that he picked up [X] at Town D on 13 March 2019. 

15. The father deposes:

    Since 13 March 2019, [X] has been living with me in Town A.

16. The father then goes on to give some evidence of the arrangements he has made for [X], including that he has re-enrolled [X] in the Town A Preschool since 2 April for two or three days a week. 

17. At paragraph 116 of the father’s affidavit he refers to communications between the solicitors, though he does not give any evidence as to how knowledge of those communications came to him, but as it was made significant in some submissions, I refer particularly to a sentence in paragraph 116:

    Mr Hertz told my solicitor not to file proceedings as costs will blow out of proportion.  My solicitor asked Mr Hertz to put a proposal to us.  Due to this, I put a hold on filing proceedings.

18. The father in his affidavit then goes on to address certain matters referred to in the mother’s affidavit by way of risk, and in particular, the father refers to an apprehended domestic violence order in January 2019 and deposes that he agreed to the ADVO without making admissions on the advice of his lawyer at the time. 

19. The father deposes that his driver’s license was suspended for one year in May 2018 and that he will recover that license on 29 May 2019.  The father deposes that he was ordered to serve a 15 month intensive corrections order which will be completed in December 2019.  The father deposes that when he gets his license back he will be required to have an interlock on any vehicle he drives. 

20. In paragraph 123, the father deposes that he does not consume any alcohol during the time [X] is in his care.

21. At the interim hearing submissions were made on behalf of each of the parties by their counsel by Ms Cotter-Moroz on behalf of the applicant mother, and by Ms McConaghy of counsel on behalf of the father. 

22. In the course of submissions on behalf of the mother, Ms Cotter-Moroz indicated that there were concerns held by the mother for the safety of the child in the father’s care, and in particular, assertions that the father drove with the child whilst unlicensed, drove with the child in a vehicle while the child was not properly restrained, and in referring to evidence contained in the mother’s affidavit, that the father had left [X] unattended whilst camping with him near a river.  She also adverted to the mother’s concerns in relation to the father’s use of alcohol.  

23. As commented by me in the course of the interim hearing, where concerns of risk are raised by either of the parties, as I have just referred as being raised by the mother, it is somewhat contradictory with the orders proposed by each of the parties in their applications. 

24. If the mother does consider that the father poses a risk to the child, and in particular, if the mother considers that the father proposes an unacceptable risk for the child for any of those or any other mentioned reasons, then it would be hard to understand why the mother proposes in order 12 sought in attachment B for interim orders to her initiating application that the child spend periods of eight days per month in the father’s care on the basis that she remain living in Sydney and the father living in Town A. 

25. Similarly, in relation to any risk that the father may advert that the mother poses to the child of any degree, that would contradict the proposal contained in the father’s response under his interim orders that in the event that the mother lives in the Town A Shire, the child live with her and spend what is, on any basis, limited time with the father. 

Applicable Law

1. In Goode & Goode,[1] the Full Court suggested in an interim application to the Court that a certain framework be adopted following on from the amendments to the Family Law Act 1975 in 2006.  At paragraph 82 of the judgment the Full Court set out a framework for the conduct of interim applications and I incorporate into my judgment that framework as detailed in (a) to (k):

   [1] Goode & Goode (2006) FLC 93-286

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering  making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of  consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child. 

2. In that regard, I have in this judgment so far identified the competing proposals of the parties and the issues in dispute at the hearing. I have indicated what I regard as the principal parts of the relevant evidence of the parties. I will go on to consider the matters under section 60CC of the Act and as to how those considerations bear on the best interests of [X].

3. In this matter, as in so many interim hearings, and it is a rare interim hearing where it does not occur, there are disputed facts between the parties.  On an interim hearing the Court is not in a position in almost all cases to make any findings of fact on the disputed facts, though the Court on the authorities can do so in cases where there is sufficient corroborating or supporting evidence for the Court to make a finding on the balance of probabilities on a disputed fact.

4. In this case, some of the fact most relevant to the issues before the Court are not in dispute, principally, that the parties separated on 14 February 2015.  Thereafter, [X] lived principally in the care of his mother and spent time with his father on a regular basis from 4 pm Tuesday to 4 pm Wednesday every week and each alternate weekend from 4 pm Friday till 4 pm Sunday, though with variations over time. 

5. There is some disputed evidence as to more extensive periods of time that the father had [X] in his care over the period of four years and some months since separation.  It is not in dispute that on 19 February 2019 the mother relocated her and [X]’s place of residence from Town A to Suburb C in the Greater Sydney area.  It is not in dispute that the first notification that the father received, and it was notification from the mother to him by an email, was on that day, 19 February 2019. 

6. It is not in dispute that [X] came back into the father’s care by a changeover at Town D on 13 March 2019, though not necessarily in dispute that that changeover was pursuant to an agreement reached between the parties that the father would spend time with [X] from 13 March 2019 to 21 March 2019, though evidence of that arrangement is given by the mother, but the father’s evidence is silent in relation to that – any such agreement. 

7. In relation to disputed facts in interim proceedings, in Marvel & Marvel,[2] the Full Court composed of Faulks DCJ, Boland and Stevenson JJ, discuss the problems associated with making findings on disputed evidence in paragraphs 120 to 123 of that judgment, and I incorporate those paragraphs into this judgment:

   [2] Marvel & Marvel (2010) 43 Fam LR 348

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [121] The issue of when the making of findings on contested evidence will constitute appealable error has been considered in a number of Full Court decisions. In this case we agree with the written submissions made by the former counsel for the ICL and the oral submissions of counsel for the ICL at the hearing of the appeal that two findings of the trial Judge were inappropriate, namely that:

   a)the father demonstrated a greater level of parental responsibility when the evidence on which that finding was based was the fact the majority of the children lived with him; and

   b)the incidents reported by the mother constituted “low level violence” as the violence identified fulfilled the statutory definition of family violence in the Act.

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. 

8. Thereafter the Full Court in Eaby & Speelman[3] said in paragraph 80 thereof:

   As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child and for those issues not to be ignored.

   [3] Eaby & Speelman (2015) FLC 93-654

9. In George & George[4] the Full Court cited Deiter & Deiter[5] in confirming that the mere fact that matters are in dispute does not mean that the Court can ignore concerns that are raised in the material evidenced before it.

   [4] George & George [2013] FamCAFC 182

   [5] Deiter & Deiter [2011] FamCAFC 82

10. In Deiter & Deiter,[6] the Court was particularly concerned with the situation where contested facts related to an assessment of risk, and said at paragraph 61:

    Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of the children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

    [6] Deiter & Deiter [2011] FamCAFC 82

11. The Full Court in Banks & Banks[7] at paragraphs 46 to 52 said as follows:

    [46] In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.  

    [47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors. 

    [49] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant.  By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial.  The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.   

    [50] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available.  Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees.  It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

    [51] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.  Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations.  Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

    [52] In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial.  In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

    [53] In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision.  The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it.  Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address. 

    [7] Banks & Banks (2015) FLC 93-637

1. My reason for adverting to the cases set out above on disputed facts in interim hearings is that the issue of risk was raised, and clearly raised, by the mother in her affidavit evidence and in her submissions.  The facts referred to by the mother in her affidavit going to that risk are addressed in some parts by the father in his affidavit from paragraphs 125 to 129, and some of the assertions of risk in the mother’s affidavit are not covered by the father, though I note that his time for preparation would have been somewhat short following service. 

2. However, as I referred to earlier, I am not approaching this matter as a risk case, given the competing proposals for orders on an interim basis made by the parties.  It is totally inconsistent with any assertion of risk, let alone unacceptable risk to the child in the care of the father for the mother to propose orders where the child will be in the father’s sole care as between the parents for periods of eight days at a time each month.

3. However, and in pursuance of the best interests of [X], it is my intention when making orders at the end of this judgment to make some mutual orders that deal with conveyance of [X] by motor vehicles and his proper restraint and the consumption of alcohol. 

4. As indicated by the Full Court in Goode & Goode and following the guidance given by the High Court generally in MRR & GR,[8] the Court must follow the applicable statutory pathway in interim hearings as well as in final hearings.  In that regard, and again referring to Goode & Goode, and as indicated above in interim hearings, the Court should be cautious in making findings of fact where there is contested evidence. 

   [8] MRR v GR (2010) FLC 93-424.

5. In relation to the statutory pathway, section 60B of the Act sets out the objects of part 7 of the Act relating to children that inform the making of parenting orders:

   (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).

   (3)  For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)  to maintain a connection with that culture; and

   (b)  to have the support, opportunity and encouragement necessary:

   (i)  to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)  to develop a positive appreciation of that culture.

   (4)  An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

6. Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child, as the paramount consideration. As the High Court has said, the best interests of the child is not the only consideration, but the best interests of the child must be the paramount consideration.

7. Section 60CC of the Act provides that in determining what is the child’s best interest the Court must consider the matters set out in subsections (2) and (3), and particularly noting the weighting requirement in subsection (2A).

8. Section 61DA provides that in making a parenting order, in either interim or final proceedings, 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. When making an interim order the presumption applies unless the Court considers it would not be appropriate in the circumstances for this presumption to be applied when making that order.

9. Under section 65DAA, if the presumption of equal-shared parental responsibility in relation to the child applies and is not rebutted, the Court must first consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable and, if it is in the best interest of the child and reasonably practicable, the Court must consider making an order for the child to spend equal time with each of the parents.

10. If equal time is found not to be in the child’s best interest or impracticable, or is found to be in the child’s best interest and practicable but the Court considers, but rejects, equal time with each parent as a result of the consideration of the section 60CC factors, then the Court must consider making an order that the child spend substantial and significant time, as defined in section 65DAA(3), with the parents on the same triple-step basis as for the consideration of equal time.

11. Sections 60CA, 60CC and 65D combine to require that, if neither equal time nor substantial and significant time is considered to be in the best interest of the child, or is impracticable, or are considered in the best interest of the child and practical but the Court, after considering making such an order does not do so, then the Court may make such order in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child as a result of considerations of one or more of the matters in section 60CC.

12. In relation to the process involved in the exercise by the Court of a judicial discretion I note what was said by the High Court in Bondelmonte & Bondelmonte[9] at paragraph 32 of the joint judgment:

    A parenting order made under section 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, best interests of the child, which involves an overall assessment of a number of other considerations, either statutarily prescribed or considered by the Court to be relevant.  The primary considerations in section 60CC(2) are matters to be borne in mind as consistent with the objects of part VII.

    The additional considerations in section 60CC(3) require assessment of the matters there listed by reference to the circumstances of the case.  They involve value judgments in respect of which there may be room for reasonable differences of opinion as does the overall assessment of what is in the best interests of the child.

    [9] Bondelmonte & Bondelmonte (2017) FLC 93-763

13. In dealing with parental responsibility, as I said above, section 61DA requires that in making a parenting order the Court must apply the presumption that it is in the best interest of the child, for the child’s parents to have equal-shared parental responsibility for the child, unless either the presumption is rebutted or, if the presumption does not apply because the matter comes within one of the exceptions to that section – one of the exceptions to that section is where there has been abuse of a child or another child, who at the time was a member of the parent’s family, or there has been family violence. In those cases the presumption does not need to be rebutted, because the presumption does not apply.

14. In this case there are assertions of family violence made by the mother in her evidentiary material.  Those are contested facts. 

15. If there were findings made that the mother’s assertions of domestic violence were found established, then the presumption would not apply.  However, as I say, those being contested matters and the Court not being in any position whatsoever to make a finding thereof, there being no other material before the Court by way of evidence other than the competing affidavits of the parties, it is not open to the Court, to make a finding of family violence. 

16. In circumstances of this matter being heard on an interim basis, I intend to apply the presumption and to make an order in due course, that the parties have equal-shared parental responsibility for the child.  That makes a difference from the circumstance from the time of the child’s birth up to date and, including through the period of their separation under section 61C of the Act where the parents each had parental responsibility for the child, being a different circumstance to the order under 61DA for equal-shared parental responsibility. 

17. Having made that order for equal-shared parental responsibility, the Court is required, under section 65DAA, to consider on the triple basis whether it is in the best interests of [X], for the parents to have shared care.

18. The parties separated four years and a couple of months ago.  During that time [X] has lived principally with his mother.  His father has spent time with him over that period pursuant to the parenting plan on a basis below what in the Act is defined as substantial and significant.

19. In a context where the parties live some – as I’m told in submissions but not in the evidence – six hours apart, being the travelling time between Town A in southern New South Wales and Suburb C in the greater Sydney area, then it could not be found to be practicable, for the parties to share care of [X].  Such a circumstance, besides requiring overfrequent travel for the child over that distance, would make it impossible, for him to attend regularly at any particular preschool on a consistent basis.

20. In circumstances where both parties may reside in the Town A area, it would be practicable, for the parties to have shared care, but I am not asked in either application to make an order for shared care, and I do not intend to pursue that topic any further. 

21. Having decided that it is not in [X]’s best interest to make an order for shared care, the Court is required by the section to consider whether an order that [X] spend substantial and significant time with a parent with whom he does not live is in his best interests, substantial and significant time being defined in section 65DAA(3), as including weekends and non-weekend days, and I note that the time that [X] has been spending with his father since separation, except for certain odd occasions deposed to by the father, would not come up to sufficient to be within the definition of substantial and significant time.

22. Once again, if the parties are living as far apart as Town A and Suburb C, then it would not be practicable, for the party with whom [X] is not living to spend substantial and significant time.  If the parties were both living in the Town A area, it would be possible, for parties to spend substantial and significant time.

23. The father has made his proposal for his time with the child in that event, being a reversion to the regime that subsisted for some time, being to spend time with him each Tuesday 4 pm, to Wednesday 4 pm, and each alternate weekend, from 4 pm Friday to 4 pm Sunday. 

24. The mother in her application is silent in that regard.  In those circumstances I do not consider that making an order not sought by either of the parties, that [X] spend substantial and significant time with his non-live-with parent, is in his best interests. 

25. Before I go on to consider the matters under section 60CC, both the primary considerations and the additional considerations, I turn to what is in effect the principal issue in the interim hearing, and that is relocation by the mother of herself and, initially, [X] to the Sydney area, [X]’s relocation being in effect terminated prior to the interim hearing on 13 March 2019 by his coming back into the father’s care and the father retaining him, living with him back in the Town A area.

26. Boland J sitting as a Full Court in the very-often-cited case of Morgan & Miles,[10] made a number of comments relevant to the circumstances of this case, in particular, in paragraphs 82 to 88:

    [10] Morgan & Miles (2008) Fam LR 275

    It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although        s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order.  Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.

    I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements.  Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.  

    The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.

    In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph.  Whilst lengthy, it aids understanding to set out the relevant passages from Goode:

    71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

    72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.  This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

    73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

    I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and  s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.

    As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant. 

    It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.  It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.

27. In that regard, I turn to the comments that her Honour Boland J adverted to in paragraph 88, being comments made by Warnick J in C & S[11] as follows:

    In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately before-hand.

    [11] C and S [1998] FamCA 66

28. I also include in my judgment from the judgment of Morgan & Miles paragraphs 55, 66 and 72 to 75:

    [55] Secondly, on one reading of the submission, it assumes a “right” to relocate.  There is nothing in the legislation which provides that a parent who has existing order which provides that the child spends fifty per cent or more of his or her time with that parent has a unilateral right to move the child, (on the basis that this is in the child’s best interests).  Whilst such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation.  It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a Court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.

    [66] The effect of an order which provides for shared parental responsibility is to require parents to jointly make a decision about a major long term issue for the child (s 65DAC). Major long term issues include matters such as the child’s education, religious and cultural upbringing, health, name, and “changes to the child’s living arrangements that make it significantly more difficult for a child to the spend time with a parent” (s 4(1)).

    [72] There can be no dispute that in determining a case where one party, which research indicates is invariably the mother, (see Easteal, P, Behrens, J and Young, L, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law, 234) wishes to relocate, a court is making a parenting order generally about who the child will live with or with whom the child shall spend time.  The Act does not treat “relocation” cases as a special category of parenting orders.  In that respect the amending Act has effected no change to the law.

    [73] It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole, consideration. 

    [74] The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order.  The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.

    [75] It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent. 

1. At paragraph 79 and 80 of Morgan & Miles her Honour set out the matters which the Court is to consider in circumstances where a parent with whom a child lives relocates.  They are, of course, just as applicable to a case where, such as this, one parent has by unilateral decision relocated a child’s place of residence.  I incorporate in these reasons paragraphs 79 and 80 of that judgment:

   [79] In considering whether the child should live with the parent who proposes to relocate a court:

   - Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   - Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   - Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   - If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   - In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   - When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   - Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.   Depending on factors such as  the age of the child, the wishes of the child, the relationship between the child and a parent,  the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   - that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   - that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   - that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   - the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   - Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. 

   [80] It follows from my exposition of the legislation, that earlier core principles:

   - that the child’s best interests remain the paramount but not sole consideration;

   - that a parent wishing to move does not need to demonstrate “compelling” reasons;

   - that a judicial officer must consider all proposals, and may himself or herself  be required to formulate proposals in the child’s best interests; and

   - the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

2. Bearing on the paragraphs quoted from Morgan & Miles and C and S, in this case, I note that the mother has moved [X]’s residence without considering at that time whether or not the father would object to the move. 

3. On her evidence, the mother made no inquiry in that regard, perhaps feeling sure of his reaction, but that can only be a speculation at this point. 

Primary Considerations

1. Turning to the primary considerations under s 60CC(2):

The benefit of the child having a meaningful relationship with both of the child’s parents

1. What is a meaningful relationship was considered by the Court in Mazorski & Albright[12] and I include in these reasons paragraph 26 of that judgment:

   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.

   [12] Mazorski & Albright [2007] FamCA 520.

2. In McCall & Clark the Full Court, at FLC 83-476, accepted as appropriate the interpretation made by Brown J in Mazorski & Albright of meaningful relationship.  Kay J, sitting as a Full Court in Godfrey & Sanders,[13] a matter involving an application by a mother to relocate, agreed with Dessau J in M and S (formerly E) and said at paragraph 33:

   The Act sets out in section 60CC several matters for the Court to consider and determine what is in the child’s best interests.  It does not seek to mandate that any of the other matters becomes determinative in any particular case.  For the purposes of this case, the legislation requires that there be a primary consideration given to the benefit of the child having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.

   [13] Godfrey & Sanders [2007] FamCA 102.

3. And then later at paragraph 36, Kay J said:

   It seems to me that the final conclusion reached by the federal magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the federal magistrate.  Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship not an optimal relationship.

4. In this matter, it was submitted by both counsel on behalf of the parties that [X] has a meaningful relationship with each of the mother and the father.  Of particular concern in a case such as this, where there has been a unilateral relocation of a child’s place of residence by one party and then, in this particular case where it goes on to a second, if you like, issue of a relocation back by the other party, in this case the father, and the child being kept from that time to this from pursuing a relationship with the mother, the concept of meaningful relationship is of particular importance.

5. In the mother’s proposal, if [X] were to return to live with her at Suburb C in the Greater Sydney area, she would propose that the father spend about a week each month with [X], with [X] being required to undertake a six hour trip at the beginning of that time and a six hour trip at the end of that time, with the changeover taking place at Town D as an agreed midpoint.  That regime, given [X]’s current age at four years and eight months, can conceivably allow [X] to maintain a meaningful relationship with his father, the submission on behalf of the mother being that it is the same quantity of time between [X] and the father as was enjoyed by them under the old regime before the mother unilaterally relocated [X] to the Sydney area but, of course, it is not the same frequency of time between [X] and his father.

6. On the other hand, the proposal made by the father if the mother remains living in the Sydney area and [X] were to remain living with the father in the Town A area, that the mother spend time with [X] for one week in each month, has the same drawbacks for the meaningful relationship between [X] and his mother, given that until 13 March 2019 [X] had lived principally in his mother’s care.

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

1. Section 60CC(2)(b), under the primary considerations, refers to:

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

2. And under subsection (2A):

   In applying the considerations set out in subsection (2) –

3. That is:

   The benefit to the child of having a meaningful relationship.

4. And:

   The need to protect the child – the Court is to give greater weight to the consideration set out in paragraph (2)(b), the need to protect the child.

5. As I have set out earlier in this judgment, I do not consider this to be a risk case and in any case, I have indicated I intend to make certain orders addressing any asserted risks relating to consumption of alcohol and conveyance of [X] in motor vehicles.

Additional Considerations

Any views expressed by the child

1. I turn to the additional considerations in section 60CC(3).

2. In that regard, I note the comments of the High Court in Bondelmonte & Bondelmonte[14] but in the context of this case, where [X] is four years and eight months of age, it is not a case, firstly, where I am given any real evidence of wishes expressed by [X] and, secondly, it’s not a case where any wishes expressed by [X] should be given weight by the Court, [X] being at an age where he has not reached what is known as the cognitive age, at about eight years of age, and not in a position to make any considered or reasoned judgment in expressing wishes.

   [14] Bondelmonte & Bondelmonte (2017) FLC 93-763

3. At this point, I do note the evidence in the father’s affidavit as referred to on behalf of the mother in her counsel’s submissions that since coming into the father’s full time care on 13 March 2019, and found in paragraph 113 of the father’s affidavit:

   There has not been a single occasion where he has pined for his mother.

4. It’s regrettable that that evidence is given by the father.

The nature of the relationship of [X] with each of his parents and other persons (including any grandparent or other relative of the child)

1. In this regard I note the evidence of the mother that her two adult children from previous relationships live in the Town A area and that her mother lives in the Town A area and that until [X] was relocated on 19 February 2019 by the mother, he had regular contact with both of his adult half siblings and he had contact with his maternal grandmother.  In relation to the nature of the relationship of [X] with each of his parents, on the basis of the evidence and the submissions made to the Court, [X] has not only a meaningful relationship with each of his parents but he has a loving relationship with each parent.

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.

1. On the evidence of each of the parties, a regime of the father spending time with the child, pursuant to a parenting plan, was established and, in large part, took place over the period of four years since separation.  The evidence would seem to indicate that the regime was to the satisfaction of each of the parties. 

2. The father deposes that he had more extensive periods of care of [X], particularly at the request of the mother, when she had either holidays or other reasons to make that request.  There is nothing to lead me to think that either parent has failed to take opportunities provided to spend time with [X] or to communicate with [X].

3. In relation to participation in decision making, there’s inference in the father’s affidavit in relation to the mother’s apparently short discussion with him about the school to be attended by [X] in 2020, School M. 

4. As I say, an inference that there has been a failure by the mother to consult fully with him, though I must say that on the basis of the evidence, that inference cannot be taken to any position of weight against the mother.  In fact, the evidence given by the father indicates that the mother did attempt consultation with the father about that topic.

5. In paragraph 98 of the father’s affidavit:

   On 31 January 2019, Ms Stringer informed me that she wanted [X] to be enrolled in the kindergarten program at School M.

6. The inference can equally be drawn that the mother was attempting a process of consultation.

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

1. I am given between little and no evidence in the affidavits to assist with this consideration other than evidence by both parties that the current child support assessment is an assessment of nil payment by the father to the mother and I’m not going to offer any criticism of the father on the basis of an assessment by the Child Support Agency.

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

1. For the whole of his life up until 13 March 2019, except for short periods when he spent time with his father, [X] lived with his mother. 

2. From 13 March 2019, the father retained [X] in his care and [X] has not been spending time with his mother.  In the event that the Court determines that [X] can live with his mother in the Greater Sydney area, then the time that [X] spends with his father pursuant to the mother’s application may be the same quantity per month but will be of less frequency per month. 

3. During the time that [X] lived with her in the Greater Sydney area, [X] saw his half sibling, Mr H, on an occasion and he saw his half siblings, Mr J and Mr H, on an occasion after he returned to Town A when the father left [X] with the maternal grandmother who lives in Town A. 

4. On the evidence, [X]’s half siblings on his mother’s side live in Town A, as does his maternal grandmother.  In the event that [X] resides with his mother in the Sydney area, then the opportunities for him to see and spend time with and pursue his relationship with his maternal half siblings and his maternal grandmother will be reduced in frequency.

5. If [X] resides either with his mother or with his father in the Town A area, then he will have opportunity, subject to the arrangements made by the applicable parent, to be able to spend time with not only his two maternal half siblings and his maternal grandmother, but his paternal half sibling, whatever arrangements may be made between the father and his adult son in that regard.  As to the likely effect of any changes on [X]’s circumstances, he has spent, on the evidence, the whole of his life so far in the Town A area.  He was attending a preschool in the Town A area for, I understand from submissions, the greater part of 2018.

6. He has been re-enrolled by the father in the Town A preschool after the hiatus caused by the move with his mother to Sydney.  And in the event that [X] resides in the Town A area, he can continue to attend at that preschool.

The practical difficulty and expense of the 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

1. In that regard, I note the evidence of the mother, that she is in receipt of Centrelink benefits and I note the submission made on behalf of the mother on interim hearing that it is her intention to seek paid employment whilst living in the Sydney area.  I note the evidence of the father that he’s a self-employed tradesman working in the Town A area and surrounding districts.

2. If there is a difference or a distance between places of residence of the father and the mother as between Town A and Suburb C in the Greater Sydney area, then there will necessarily be an increase in expense to each of the parties in arranging a changeover of the child, if that changeover is to occur at Town D, as the mother proposes. 

3. There will be a significant increase to the mother in expense if that changeover is to occur in Town A, as proposed by the father.  There is currently a practical difficulty in relation to the father undertaking the travel in that, as the father deposes, he is without a current licence, having lost that licence, not to be recovered by him until 29 May, which is some six weeks from now.  Thereafter, he will have, presumably, a licence and ability to drive, subject to properly applying his interlock device on the motor vehicle.  But nevertheless, in either case, there will be an expense and there will be the added difficulty of the time taken on each occasion to undertake the travel.

4. In the event that the parties conduct a changeover between them at Town D, then each of the parents will undertake a six hour drive, three hours there, three hours back, and of course [X] will undertake a six hour drive in each direction. 

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

1. Patently, on the evidence, the mother has been able to provide for [X]’s needs and I have no evidence to presume otherwise.  She has been able to provide for [X]’s emotional and intellectual needs, given that he has been in her principal care the whole of his life and her care, to the greater extent, since separation with only fairly limited periods, given the context of what, seemingly, the time would be with his father.  Similarly, I have no evidence before me that would lead me to believe that the father would not be able to provide adequately for [X]’s needs, including his emotional and intellectual needs. 

2. The father has taken steps since he took [X] into his sole care on 13 March 2019 to enrol him back in preschool and there’s nothing before me to show that [X] is not provided with all of his basic needs whilst in his father’s care. 

The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child the Court thinks are relevant

1. I don’t consider that this element is of any particular relevance in the context of this interim matter.  [X] is, as I have said, four years and eight months of age, a male child.  His lifestyle and background has been, of course, that as he finds in the care of his mother and in his spending time with his father.  Unless I’m badly mistaken, neither party has adverted to there being any element of Aboriginality or Torres Strait Islander in relation to [X]. 

2. Accordingly, consideration (h) is not relevant to this consideration. 

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

1. This may well be the principal consideration in this particular matter.  Firstly, the mother made a unilateral decision to change [X]’s place of residence from Town A, where he had spent the whole of his life up to that time, to Suburb C in the Greater Sydney area.  The mother didn’t advise the father of that intended move until that move was actually happening on 19 February 2019.  The mother then advised the father what was happening by an email and took herself and the child off to reside at Suburb C in the Greater Sydney area in the home of her brother.

1. I referred earlier in this judgment to the comments made by Boland J in the well-known case in this area of Morgan & Miles and I also referred to and read out a statement made by Warnick J in C and S in relation to cases of this nature.  The mother’s unilateral decision, in effect, can be seen deliberately or without consideration as an attempt to, in effect, hold to ransom the Court’s decision now and in the future in that it attempts to make the relocation of [X]’s place of residence a fait accompli and to argue backwards from there that her circumstances, financial and relationship-wise with her available relatives in both the Greater Sydney area and the Town A area and financially, now make it impractical or impossible for her to reverse that relocation and return with [X] to Town A.

2. At the time of the relocation on 19 February 2019, there were no parenting orders under the Family Law Act 1975 in force in relation to [X].  Therefore, there has been no circumstance of a non-compliance with an order.  However, there was a longstanding, four year regime of parenting for [X] occurring in the Town A area with regularity of his time with his father under a regime of time with his father that had, in the most part, subsisted through that four years. 

3. There was no consultation by the mother with the father and though at that time, under section 61C of the Act, each of the parents had parental responsibility for the child, it is nevertheless a reflection on the mother’s attitude to parenting and the mother’s attitude to the relationship between [X] and his father and the fostering of that relationship that she made the move, in effect, without warning and it was becoming a fait accompli, without any prior consultation and in circumstances where, in submissions and on instructions of course, it was submitted by her counsel that not only is it not practicable for her to return to Town A but that in the event that the Court orders that [X]’s place of residence be, on an interim basis, in Town A, the mother does not intend to return to Town A.

4. During the interim hearing and during submissions, I made the comment to each of the counsel that I was, in effect, throwing a stone toward each of the parties.  On the mother’s part, that stone was the matters I have just adverted to, her unilateral decision and the manner in which she went about it.  On the father’s part, the stone related to his taking [X] into his care by a unilateral decision on 13 March 2019.  On the mother’s evidence, that was contrary to an agreement between the parties.  I don’t know if that can be called a disputed fact because the father doesn’t go into evidence about that.  He remains silent. 

5. But nevertheless, whether it was by an agreement or not, one could almost infer from the fact that these proceedings commenced by the mother seeking the recovery order and the evidence that she has given and her stated intention when the question was put through her counsel whether or not she would return to the Town A area if the order was that [X] live there, it could be inferred that the mother at no time intended to simply hand [X] over to his father to live with his father on a long term basis.

6. The father’s evidence that he refrain from commencing proceedings promptly on the relocation happening based upon a communication, presumably relayed to him by his solicitor, that the mother’s solicitor had adverted to the great costs that would arise from such proceedings and that he would put a proposal doesn’t carry much weight with the Court, given that the foreshadowed proposal, had it arrived, would presumably not have been an immediate proposal that the mother return with the child to the Town A area.  Rather, it would have been a proposal of a nature that’s found in the mother’s application for the time the father is to spend with the child.

7. A party’s solicitor does not take instructions from the other party’s solicitor and the father’s proper course of action would have been to commence proceedings to seek to have [X]’s place of residence returned to Town A rather than to take the unilateral action of taking him and keeping him from his mother from 13 March this year to the present time.  Of course, the same applies exactly to the mother, that her proper course of action, as has so often been said in this type of interim relocation matter where the relocation is purported to be a fait accompli, the mother’s proper course of action was to consult with the father about the move, pursuant to their parental responsibility obligations, and if no agreement was reached, to bring proceedings seeking an order facilitating the relocation.

8. The mother’s unilateral action in that regard cannot be condoned by the Court and in the fullness of time I will be making orders to deal with that in such manner that the Court is not, in effect, held to ransom by the fait accompli.

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

1. I have adverted to the evidence of the mother in relation to family violence including that found in her attached statement to police, which refers to various occasions, those occasions being, by and large, somewhat historical.  No family violence is acceptable.  All family violence is to be deplored.

2. The definition of family violence in the Family Law Act is wide, and, of course, is not limited to physical violence, but includes several other features of violence, economic, verbal, cutting people off from interaction with relatives and so forth.

3. All family violence is harmful.  Family violence in the presence of a child is harmful to the child.  It is damaging to the child’s psyche.  Family violence perpetrated to someone near and dear to the child outside the child’s presence but then coming into the child’s knowledge by seeing things or being told things is harmful to the child.  It is harmful to the child’s psyche.  I make these comments to indicate that family violence is treated with great seriousness by the Court, as required by the Act, and as it should be in every case dealing with parenting matters. 

4. In this case, there are disputed issues of family violence, and the Court is not in a position at all to decide those matters of disputed fact on the basis of the matters referred to earlier in these reasons, and in that regard, the additional considerations at (j) does not have any great bearing on this matter, particularly as those matters of family violence adverted to by the mother in her affidavit, and despite the submission made on her behalf by her counsel that she will not return to the Town A area out of fear of the father, nevertheless do not amount in this case to a risk consideration, let alone an unacceptable risk consideration, because, as I have said several times, of the very proposal the mother puts in her application for interim orders if the child is to reside with her in Suburb C area and the father resides in Town A, to spend up to eight days per month in the father’s sole care.

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

1. I include in these reasons the items (i) to (v) that are found in that section:

   (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;

2. In that regard, I note the Final Order Apprehended Domestic Violence Order made on 15 January 2019 and continuing until 14 January 2021, that is, for a period of two years, for the protection of the mother from the father with what we may call the statutory order that the father not assault or threaten, stalk, harass or intimidate, intentionally or recklessly destroy or damage any property that belongs to or is in the possession of, in all cases, the mother;  and the additional order not to approach the mother or contact her in any way unless through a lawyer or to attend accredited or Court approved counselling, mediation or conciliation, or as ordered by that Local Court making the order or another Court about contact with the children, or as agreed in writing between the parties, and in that regard, I note the agreement in handwriting dated 15 January 2019 that is attached to the apprehended domestic violence order. 

3. I note the further order that the father must not possess any firearms or prohibited weapons, and in that regard I note the evidence of the mother and the submission made on her behalf that the father has at some time had firearms, and I note the evidence of the father and the submission on his behalf that he does not now have any firearms.

4. I note the father’s evidence that the final domestic violence order was made without admissions and on a consent basis.  I do not draw any inferences from that order that would take the matter any further than the comments I have made under the previous consideration heading (j) of family violence, given the nature of the order made, given the without admissions and by consent basis on which it is made, which means therefore that there was no hearing on the merits of that application.

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

1. I do not regard this as relevant in the context of these interim proceedings as the matter will go on from here to further hearing unless the parties reach a final agreement for the benefit of [X], as his parents, who between them are what this Court would call the ‘world experts in [X]’, because they between them know far more about him than anyone else in the world can, and they between them know far more about him than this Court ever can, given the bubble of information that necessarily is all the Court gets to go on, but unless in those circumstances they can reach agreement on what to do in the future, there will ultimately be a final hearing on the matter.

Any other fact or circumstance that the Court thinks is relevant

1. I am not directed to any other fact or circumstances in submissions, and nothing under that head arises to be recited. 

2. On the balance of the section 60CC considerations, and as I said at the time in paying particular attention to consideration (3)(i), the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents, and also in view of the comments that I made about the unilateral decision made by the mother to relocate without following the proper course, which is to consult with the father and seek some agreement, failing which she makes application to the Court rather than proposing to present the father, and, if action is taken by him, as it has been, the Court, with a fait accompli, I consider that it is best in the interests of [X] that he continue to reside in the Town A area, and that he continue to so reside with his mother. 

3. I am mindful of the several cases dealing with the making of coercive orders applied to a parent requiring that that parent on an interim or full-time basis, reside within a certain area, and I do not propose to make such a coercive order in these circumstances. 

4. However, the orders I do intend to make are based upon [X] continuing to reside in the Town A area, and the Court’s consideration that it is best in [X]’s interest that he so reside in the Town A area with his mother, but in the event that the mother adheres to her intention expressed on instructions through her Counsel, in response to a question by the Court, that she will not return to Town A in those circumstances, then that of itself speaks something of the mother’s attitude to the parenting of [X], and in that regard, the orders will provide for [X] to reside with his father in the Town A area and to spend time with his mother. 

5. Accordingly, I make orders as set out above.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Judge Morley

Date: 24 May 2019