SULLY & EXELMANS

[2013] FCCA 928

FEDERAL CIRCUIT COURT OF AUSTRALIA

SULLY & EXELMANS [2013] FCCA 928

Catchwords:
FAMILY LAW – Parenting – child’s strong views – whether those views are rational and mature given his enmeshment in the mother’s views – mother’s unilateral removal of child from Victoria to New South Wales – relocation – capacity of parents.

Legislation:  

Family Law Act 1975 (Cth)
Federal Circuit Court Rules2001

Federal Circuit Court Regulations

Applicant: MR SULLY

Respondent: MS EXELMANS

File Number: TVC 568 of 2008

Judgment of: Judge McGuire

Hearing date: 18 July 2013

Date of Last Submission: 18 July 2013

Delivered at: Melbourne

Delivered on: 26 July 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms S. Macgregor

Solicitor for the Independent Children’s Lawyer: Macgregor Solicitors

ORDERS

1. That all extant orders in respect of the child [X] born [in] 2004 (“[X]”) be discharged.

2. That the parents have equal shared parental responsibility for [X].

3. That [X] live with the father.

4. That [X] spend time and communicate with the mother as follows:

   (i)For all of the first term Victorian gazetted school holidays from the first Saturday until the last Sunday of such holidays in each year;

   (ii)For one half of the third term Victorian gazetted school holidays from the first Saturday until the second Sunday in each year;

   (iii)For three weeks in the Victoria gazetted summer school holidays in each year to commence on 24 December 2013/2014 and each alternate year thereafter and to commence 26 December in 2014/2015 and in each alternate year thereafter;

   (iv)At any reasonable time in which the mother is in [B] or Melbourne but provided that the mother give not less than seven days prior notice in writing to the father of her intention to exercise such time;

   (v)On up to two weekends per term in Sydney at the mother’s election provided that the mother give the father not less than 7 days prior notice in writing of her intention to exercise such time;

   (vi)By telephone, email or other medium on a reasonable basis; and

   (vii)Such other time as may be agreed between the parties from time to time.

5. That for the purposes of [X] spending time with the mother in New South Wales, the mother be responsible for the purchase of pre-paid return air tickets for [X] and that she provide the father with copies of such tickets or itinerary not less than seven days prior to each travel event.

6. That for the purposes of [X]’s time with the mother in New South Wales the father is to ensure that [X] is presented to each flight as advised by the mother.

7. That the mother’s Contravention application filed 24 June 2013 is dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

TVC 568 of 2008

MR SULLY

Applicant

And

MS EXELMANS

Respondent

REASONS FOR JUDGMENT

1. The matter before me involves competing parenting applications in respect of the one child of the parties, [X] born [in] 2004 (aged 9 years). 

2. The applicant is the father who commenced these proceedings by way of an application seeking a recovery order and filed 19 April 2013.  He proposes that [X] live with him at his home near [B] and that [X] spend time with the mother for one half of each school holiday period and on weekends as negotiated between them.

3. The mother wants [X] to live with her in Sydney.  She suggests school holiday time for [X] with father and such other times as the parties agree.  The mother also seeks an order for sole parental responsibility.

4. An independent children’s lawyer was appointed in this matter.  She favours the position of the father. 

Background 

1. These parents had a brief relationship from 2003 until late 2004.  There is a consistent and unfortunate litigious history between them throughout [X]’s life culminating in consent orders made by Bennett J on 4 December 2012.  Pursuant to those orders the parties both lived in the [B] area.  [X] lived primarily with the mother and spent each second weekend from Thursday afternoon until the commencement of school on Monday with the father as well as time in school holidays.

2. The history of this matter shows serious and complex issues between the parties, including allegations from both of them that [X] has been sexually abused. No findings of abuse seem to have been substantiated.

3. As at the most recent consent orders of 4 December 2012, the mother was in a relationship with a Mr W.  She has a daughter, [Y], who is three years of age.  Mr W is noted on the birth certificate as the father and hence there is a legal presumption that he is the father.  The mother also had an older son, [Z], who [died] in 2008.  At that time [Z] had been living with his father and spending time with the mother.

4. The mother separated from Mr W in about January 2013.  She says that she then visited Sydney to stay with her sister and to visit a man, Mr P, who she had known through a mutual interest in [omitted] but had never met personally.  In March or April 2012 the mother went to Sydney with [X] for a holiday.  She did not return on 18 April, as agreed.  It seems that she had commenced a domestic relationship with Mr P.  These events led to the father’s application and a recovery order in his favour was made on 15 May 2013.  Pursuant to that order [X] was to live with his father in [B].  He returned to his previous primary school after being enrolled in a school in Sydney by the mother and attending there for approximately two weeks. 

5. The evidence suggests that the mother and [X] have seen each other on only two occasions since the making of the recovery order but have been in almost daily contact by telephone.

6. The orders of 15 May 2013 also appointed the independent children’s lawyer.

7. The court has had the benefit of a comprehensive report by Mr L, psychologist.

8. Both parties conducted the trial without representation.  They did so, however, in a professional and courteous manner.  The ICL was presented by counsel.

The issues

1. The major issues in this matter emanating from the evidence appear to be the following: 

   i)The views and preferences of [X] as to his living and the weight to be afforded them;

   ii)The capacity of the parents to provide stability for [X];

   iii)The nature of [X]’s relationships with each of his parents and his sibling, [Y].

Evidence

1. Both parties relied on a number of affidavits and were cross-examined.  Neither adduced evidence.  Significantly, the mother did not adduce evidence from Mr P although he is proposed to be the male adult figure and her financial provider in the mother’s home.

2. The family report of Mr L is dated 14 July 2013.  He interviewed the child and the parents on 25 May 2013.  He again saw [X] at his [B] home on 19 June 2013.  Mr L was cross-examined extensively by each of the parties and counsel for the independent children’s lawyer. 

Family Report

1. Mr L recommends that [X] remain living with his father. He recognises [X]’s strong, direct and consistent view and preference that he wants to live with his mother and sister.  However, Mr L questions the veracity and rationality of [X]’s views and sees them as being enmeshed with those of his mother and within his relationship with his mother and his sister.  On balance, Mr L prefers the stability, including that of his school, that the father can offer [X].  Mr L has concerns as to the emotional maturity of [X] and in his stated preferences and in respect of his enmeshment with his mother.  He notes that historically [X]’s relationship with his father has at times been fractured due to the various allegations and previous court proceedings but that this relationship is resurrected and re-established and that a move to Sydney for [X] means yet a different regime of relationship with his father.  Mr L believes that the relationship for [X] with his father is a more healthier one than that with the mother in the sense of autonomy and individualisation. 

A relevant law

1. Section 60CA of the Family Law Act 1975 (“the Act”) provides that I must have [X]’s best interests as my paramount consideration.

2. The mother’s argument here involves an anticipated relocation of [X] from [B] to Sydney. Relocation cases bring with them their own legal complexities. Nevertheless, the Act itself is silent as to the notion of relocation and it is clear that the mother’s proposal is just one of the many considerations that I must address in ultimately determining [X]’s best interests.

3. The orders of 4 December 2012 provide for a continuation of equal shared parental responsibility between these parents. In her material as filed the mother sought sole parental responsibility. By the end of the evidence and in her final address she did not vigorously pursue such an order. In any event, pursuant to section 61DA of the Act there is a presumption of equal shared parental responsibility unless the presumption does not apply due to issues of family violence or, alternatively, that presumption is rebutted as being contrary to the child’s best interests. Whilst the mother has filed a Notice of Risk of child abuse, I am not of the view that there are family violence matters within the definition in the act which impact on my determination and which would make the presumption inapplicable. The mother’s notice was in respect of concerns she had in the father involving [X] in the proceedings. No affirmative action was taken by the Department in respect of these matters.

4. Significantly, however, if the presumption applies or I make an order for equal shared parental responsibility then there is a mandatory pathway of consideration for me to follow. I must consider firstly whether [X] spending equal time between his parents is both in his best interests and reasonably practicable. If the answer to either of these questions is in the negative then I am to consider whether [X] spending “substantial and significant time” within the definition in the Family Law Act, is both in his best interests and reasonably practicable. Obviously, a matter involving a relocation and where the father lives in [B] and the mother lives in Sydney would not accommodate either equal time or substantial and significant time as being reasonably practicable or in [X]’s best interests. In the matter now before me, and despite intrusive cross-examination by the father and the independent children’s lawyer, the mother is steadfast in her reluctance to return to live in [B].

5. Similarly, the father says that he will not move to Sydney.  Hence, the only real options available for the Court are along the traditional regime of the child living with one parent and spending holiday or weekend time at the other.

6. A long line of authority, both before and post the significant amendments to the Act in 2006, have established a number of principles in respect of the matters involving relocation. They can be summarised as follows:

   a)The child’s best interests remain the paramount consideration but not the sole consideration;

   b)There is no particular onus on a parent intending to relocate and that parent need not show “compelling reasons” for the relocation;

   c)The Court must canvass the proposals of each parent and the advantages and disadvantages of any proposed relocation;

   d)The Court should consider and give weight to the rights of adults of freedom of movement but subject to the best interests of the child.

The father’s case

1. Mr Sully says that he can provide [X] with stability, order and routine in his life.  He says that the mother has no demonstrated stability in her own life and is likely to continue to move between relationships and residences within a context where this child has already endured a number of moves of home and school.

2. The father says he has a good and beneficial relationship with [X].  He says that he provides him with a broad exposure and a lifestyle which they enjoy together.  The father says that the child’s wishes and views are either now equivocal or should be disregarded in respect of living with his mother and sister because they are not rational and mature views but rather those of a nine year old who illogically sees himself as the “protector” of his mother and his sister.

3. Mr Sully has not re-partnered.  He lives alone with [X].  He says, however, that he has an established network of support, although no affidavits were forthcoming.

The mother’s case

1. The mother places great emphasis on the fact that [X] consistently wants to live with her.  She says that weight should be given to these views and that they are mature and soundly based.  She says that she can provide [X] with an ongoing relationship with his young sister and that [X] and [Y] have an extremely close relationship.  The mother says that she is now in a stable relationship.  She says that she moved from [B] so as to remove herself from an abusive relationship with Mr W.  The mother says that Mr Sully is psychologically manipulative of [X].  She says that her domestic relationship is stable and that she has no intentions of moving.  There was, however, no affidavit material from Mr P.  The mother says that she cannot return to [B] as she has no home and no support network there.  She says she is fearful of her former partner and his associates.  She says that she has commenced a course of study and that the practical aspect of those studies is best accommodated in Sydney.

Section 60CC factors Section 60CC(2)(a) – The benefit of the child of having a meaningful relationship with both of the child’s parents. 

1. This is a prospective and qualitative notion.  That is, the Court is to look to the future as to the success and benefit of relationships for [X] in making any orders.  Further, a beneficial relationship is not based simply on quantity of time but on the quality of that relationship.  Obviously, in making such prospective determinations, the Court is much influenced by the current state of relationships between children and parents.

2. [X] is undoubtedly close and attached to both his mother and his sister.  Mr L is of the view that [X]’s connection to his young sister is perhaps the most important for him. 

3. The history of litigation between the parents has caused [X] to need to re-establish his relationship with his father following periods of hiatus and some supervised time.  On the evidence before me that relationship is progressing well and has been resurrected.  It may be seen as something of a “work in progress” but has significantly progressed.

Section 60CC(2)(b) – The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

1. Matters of family violence do not feature prominently here.  The issues of alleged sexual abuse have been disposed of in previous proceedings.  I am not aware that any positive findings were made or that there were any findings of unacceptable risk.  The mother now raises issues of emotional or psychological abuse and are particularised in her notice of risk of child abuse filed with the Court.  I am not satisfied on the evidence that there is any substance to these allegations.  It is clear that [X] has been involved in the decision making process in respect of a potential move to Sydney.  Both parents have sat him down, both together and individually, and at times placed him, in my view, under some pressure to be the decision-maker.  Suffice for me to say that this is inappropriate in respect of an eight or nine year old child.  Not surprisingly, the parents each claim that [X]’s preference varies as articulated to each of them.  Also not surprisingly, each parent claims that the other has influenced the child.

Section 60CC(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views. 

1. [X]’s views in this matter feature significantly. It should be remembered, however, that he is just nine years of age.  The evidence suggests that he has consistently said that he wants to live with his mother and his sister.  In this sense I am satisfied that his preference is in respect of the mother and sister rather than geographically as to Sydney.

2. Mr L took the precaution of interviewing [X] twice, given that he has only recently been returned to [B] under the recovery order at the time of the first interviews.  The second interview took place at the father’s home.  Mr L reports that [X]’s views and preferences remained to be living with his mother and sister in Sydney.

3. Nevertheless, Mr L doubts the voluntary or rational nature of these statements from [X].  A paragraph 6 of his report Mr L says:

   I met with [X] on two occasions:  Once at my rooms shortly after he had returned to his father’s evidence, and again some weeks later when I thought he might have settled a little bit more there.  I have little doubt that he had, but on both occasions he was quite clear that he wanted to go to Sydney to live with his mother, his sister and the child, Ms Exelmans is expecting:

   “We’re pretty sure it’s a she …”

   This wish to be with his sisters is very significant in [X]’s thinking:

   “I always want to be with my little sister and the baby to protect them.”

   And it is closely linked to unresolved emotions relating to his brother’s death.

   “He wasn’t with us when he died”.

   I am also fairly confident in my view that [X] has been allowed to step into a parenting role towards his younger sister for which he is neither cognitively or emotionally ready.

   [X]’s other reasons for wanting to move to Sydney mimicked many of those his mother had given me.  I am not suggesting in any way that these need to have been scripted or coached:  Children exposed to ongoing conflict cannot be expected not to take verbal and non-verbal cues from their parents in trying to deal with it themselves.  These were some of [X]’s reasons:

   “It’s luxury there … It’s really nice … It’s nice outside in the garden … You can look for lizards.”

   “Mum never ever wants to be in [B] because she doesn’t feel safe there … We lived in a really bad street.”

   “Sydney is a lot warmer … It’s more multi-cultural … There are some Asians but not so many in [B].”

   “I always wanted to live with my mum … He wasn’t supposed to have me for six months.”

4. Interestingly, the mother denies that she is or has recently been pregnant and cannot explain the genesis of [X]’s statement.

5. At the second interview, [X] informed Mr L that he had enjoyed his new school in Sydney but that he liked his school at [K] ([B]) and that he was going well there, was not being bullied, and had made some friends.

6. At the second meeting between [X] and Mr L, the child was reported at paragraph 6.6 of the report as:

   Things are going good at home and at school… I’m not getting bullied at school… Dad hasn’t been yelling at me like I thought he might… but I would still prefer to be up there.

7. Mr L says that [X] is enmeshed in his mother’s views generally.  He says that this is unhealthy and stymies the child’s development.  Mr L says that [X] has taken on a “parenting role” in respect of his sister and his mother, which is also unhealthy.  He says that [X]’s views and preferences must be seen within the context of him not ever having known his parents not being in dispute about him.  Mr L notes also the obvious and understandable effect on his mother on the tragic loss of [Z].  In cross-examination, Mr L responded thus:

   Yes, I think that [X]’s emotions are significantly enmeshed with those of his mother.  He thinks it’s his role to parent his younger sister and, perhaps, his mother.  The first time I spoke to [X], I got the impression that he was rehearsed with a list of reasons to be in Sydney and was mustering his argument.  On the second visit, he still wanted Sydney but was open to the positives of [B] and school and dad.

1. I must, of course, consider the impact on this child and his relationships of making orders that are against his stated of views and preferences.  Mr L considered this factor and suggested the options of some counselling and understanding on the part of the parent.  He professed some optimism from the recognition by the father in his evidence of the likelihood of some difficulties or even resentment from [X] of an order contrary to his preferences.  Mr L also recognised some objectivity coming from [X]’s considerations in their second interview, although he was still consistent in his desire to live with his mother and sister. 

Section 60CC(3)(b) – The nature of the relationship of the child with each of his parents and any other relevant persons. 

1. At 7.12 of his report, Mr L says:

   While [X] formed his primary attachment with his mother, Ms Exelmans, he now has more individuated, robust and developmentally important parent-child relationships with both her and Mr Sully.  He is also now of an age and relative autonomy where his views and wishes should be given substantial weight, but this is difficult because they are significantly enmeshed with those of his mother.

2. The evidence as a whole indicates that [X]’s primary attachment is to his mother and sister but that he has also developed a strong attachment to his father.  However, it is not the fact of those relationships rather their nature which is important.  The relationship between [X] and his father is a beneficial and developing one.  On the evidence before me, and in accordance with Mr L’s views, that relationship appears to be a more hierarchical appropriate one than does that between child and mother/sister.  With his father, [X] enjoys mutual interests.  The father is a proactive and hands on parent.  They share an interest in vigorous outdoor activities.  [X] is progressing very well at the [K] School and cross-examination suggested that the father has an ongoing involvement, interest and provides assistance for [X] with his schooling.  Nevertheless, the relationship between [X] and his father has a difficult past.  There have been periods of supervised time.  I must consider the effect of orders on the mother’s proposal which would cause yet another change in what has been a variable relationship between child and father.  Variously, there have been gaps in that relationship.  More recently and pursuant to the orders of 4 December 2012, both parents have lived in [B] and [X] has spent long weekends with the father whilst living primarily with the mother.  Most recently and following the mother’s unilateral move to Sydney, [X] did not see his father for a number of weeks.  More recently, he has lived primarily with his father and had limited direct contact with the mother.

3. I must consider the parties’ practical and financial positions.  The mother is determined to live in Sydney.  The father is determined to live in [B].  [X]’s relationship with one or other of the parents will inevitably become more irregular and less frequent than anticipated by the consent orders made by Bennett J in December 2012. 

4. Mr L’s evidence in court emphasised the concerns he has in the relationship between [X] and the mother.  He sees that [X] is being unnecessarily “protective” of his mother and his sister.  Mr L sees a confusion of role models.  He says that [X] assumes a “parenting role”.  He says that [X] is enmeshed within his mother’s views.  In cross-examination, Mr L opined:

   His feelings are very enmeshed with those of his mother’s.  He has taken on a “parenting role” which is not healthy for a nine year old boy.  I think this boy needs full time with his father to address an unhealthy relationship between child and mother.

5. In making such observations and conclusions, Mr L effectively agrees with and adopts conclusions from previous family reports and particularly one by Mr E relied on in previous proceedings.  Under criticism from the mother in cross-examination, however, Mr L emphasised that he had read and considered all of the previous family reports.

6. Mr L suggests that [X] living with the father would have two distinct advantages being:  (1) that the relationship between [X] and the father would be allowed to develop fully and show signs of being a successful and stable one; (2) the relationship with the mother may be improved and remedy any hierarchical confusion and become a more objective and beneficial one for the child.

7. I must, of course, consider the impact on [X] of being removed from his sister.  That removal would be compounded by the difficulties in regular direct contact and given that the child is just three years of age.  I am satisfied that [X] has a very close, if not overly protective, relationship with [Y].  His preference is to live with her. 

Section 60CC(3)(c) – The extent to which each of the child’s parents has taken, or failed to take, the opportunity:  (1) to participate in making decisions about long-term issues in relation to the child;  and (2) to spend time with the child;  and (3) to communicate with the child;  (ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligation to maintain the child.  And issue here is the mother’s unilateral removal of [X] to Sydney in March and April 2012 and what this says about the mother’s own insight, priorities and understanding of the child’s need to have a relationship with both parents.  Issues of credit are also significant at this juncture.

1. On the evidence before me, I have concerns as to the chronology given by the mother and the veracity of her evidence in respect of her decision to move herself and the children to Sydney.  Consent orders were made before Bennett J on 4 December 2012.  At that point, the mother relied on affidavits which deposed as to the suitability of Mr W in her home and as to his beneficial and proper relationship with [X].  By January 2013, she had separated from Mr W, alleging an abusive relationship and that he was a substance abuser.  In February 2013, she physically meets Mr P in Sydney.  She now deposes that she had enjoyed a previous internet friendship with Mr P through an interest in [omitted].  In March-April, she took the children to Sydney for a holiday with an agreement to return [X] on or before 18 April.  By 18 April, the mother was in a relationship with Mr P and living with him.  She unilaterally determined to keep [X] in Sydney.  In May 2013, we now learn, proceedings had been commenced by Mr W in Victoria seeking residence of [Y].  In May 2013, the mother responded by seeking DNA testing and now claims that Mr W is not the father of [Y].  The suggestion by the father and supported by the independent children’s lawyer in her final submissions is that the mother has been less than candid and forthcoming in this chronology and that it is open for me to find that she determined for her own reasons to move to Sydney so as to take up a relationship with Mr P.  It is suggested that she blatantly and deliberately set out to contravene the consent orders made as recently as December 2012 and thereby jeopardised the relationship between [X] and his father for those selfish reasons.  Against this background, I have concerns as to litigious history between these parents and including the nature of the allegations previously brought before the court.

Section 62CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either his parents or any child, or other person with whom he or she has been living. 

1. Given the evidence from Mr L, separation for [X] from his mother and sister is likely to have an impact on him.  Mr L is of the view that such difficulties can be dealt with and perhaps by some counselling.  The inference from Mr L is that the father has a demonstrated insight and empathy, and is aware of the potential for such problems, including, perhaps, that there may be some resentment directed to him from [X] if orders are made against the child’s preferences.

2. Further, an important impact for [X] is that, despite the benefit afford him from the orders of December 2012 in regular contact with each of his parents, he will inevitably be removed from regular and frequent contact with one of them by reason of the mother’s move to Sydney, and her determination to stay there. 

Section 62CC(3)(e) – The practical difficulty and expense of the child spending time with, and communicating with, a parent, and whether that difficulty and expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. 

1. Matters of relocation always bring a change, and practical difficulties for the child and parents, usually of geographically, financial and travel contingencies.  Neither of these parents are wealthy.  The father works part time.  The mother, at this stage, is financially dependent upon
   Mr P, and we have not had any participation by Mr P in these proceedings.  It appears likely that [X]’s time with the other parent will be mainly limited to school holidays with other time being dependent upon the financial positions of the parties from time to time.

Section 62CC(3)(f) – The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs. 

1. The mother questions the father’s capacity to care for [X] both actually and emotionally.  However, the evidence suggests that [X] is now settled in his home and settled at school.  He appears to be progressing well, both academically and socially.  The father is a sole parent, but says that he has a support network, albeit not one that was brought to court by affidavit. 

2. There is no doubt that the mother has the demonstrated capacity to care physically for [X].  Any issues as to her capacity rest with her insight into the needs of this child to have a relationship with the father.  Again, much rests on the credit of the mother in unilaterally removing herself and the child from [B] to Sydney.  There is also her ability to prioritise the child’s needs over her own and to ensure that [X] is member of her household as a nine-year old child, rather than as a “protector”.  Ms Exelmans evidence in respect of Mr P was at times contrary. At one stage she volunteered that she being in a stable and committed relationship with him was a reason for her to remain in Sydney and for [X] to live with her.  On another occasion in her evidence she said that the relationship with Mr P was neither a motivation for her moving to Sydney nor did it prohibit or hinder her return to [B].  The obvious conclusion from the latter statement is not of a committed relationship.  The failure by the mother to adduce evidence from Mr P remains a concern.  The mother is not financially independent of him.  Matters of relocation raise issues of travel costs, and I simply know nothing of the financial means, resources or willingness of Mr P to contribute to [X]’s travel to [B] should he live with the mother in Sydney.

Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks relevant

1. The relevance of this consideration is the child’s age.  He is just nine years old.  Mr L suggests a confusion in [X] as to his role within his mother’s household.  In the circumstances, it would not be unusual for the child to assume a male role-model position in respect of his mother and his sister.  It is not wrong or bad per se for him to be protective of his mother and his sister.  The issue is whether the mother can establish and maintain a correct and beneficial hierarchy within her own home. 

Section 60CC(3)(h) – The child is an aboriginal or Torres Strait Islander.

1. This consideration is not relevant. 

Section 60CC(3)(i) – The attitude to the child, and the responsibilities of parenthood demonstrated by each of the child’s parents.

1. These proceedings were initiated by the mother’s unilateral move of [X] from [B] to New South Wales.  She did so within only a few months of consent orders which gave [X] an ongoing regular and frequent relationship with each of his parents.  She says that she went to Sydney to escape an abusive relationship in Victoria.  She left that relationship in January 2013.  She went to Sydney with the children ostensibly for a holiday in late March 2013.  There is no evidence that she had obtained an intervention order or other protective measures against her former partner, Mr W.  I have not had the benefit of any affidavit material filed in the family law proceedings between the mother and Mr W.  The mother’s affidavit is not well particularised in respect of her concerns and alleged fears in relation to Mr W.  It remains a concern that the mother should unilaterally change the nature of the relationship between [X] and his father and particularly given the history of that relationship.  It remains a concern that the mother has prioritised her own needs over that of [X]. 

Section 60CC(3)(j) and (k) – Any issues of family violence and family violence orders.

1. I am satisfied that issues of family violence do not impact directly in this matter and in respect of each parent and [X].  I repeat my concerns in respect of the veracity of the mother’s alleged abusive relationship with Mr W she says caused her to relocate from [B] to New South Wales.  I cannot find that the separation of that Mr W may have presented difficulties and concerns to the mother.  The concern I have is the use of this fact as a justification on part – justification by the mother for just a drastic act as a unilateral move of this child to Sydney and the effect on his relationship with his father. The mother does not give me evidence of sufficient particularity or weight to justify this claim and the fear remains that she is embellishing her claimed fears of Mr W or even being opportunistic in using it to shore up her case.

Section 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in respect of the child

1. Relocation matters are always problematic in this regard.  Whatever order I make will result in a new set of circumstances for [X].  If he lives with his mother in Sydney then his relationship with his father will take on a different form than is current.  If he remains living with his father in [B] then that relationship will be tested by orders that are quite clearly against this nine year old child’s preferences and will also provide him with a significantly different relationship with his mother and his sister. 

2. Consequently, and again whatever orders are made, it is for these parents to respond positively and in the child’s best interests and so as to avoid further litigation.  It has not escaped my attention that this child’s young life has thus far been highlighted by regular litigation between his parents. 

Discussion and conclusions

1. Matters involving the potential relocation of the children are amongst the more difficult to come before these courts.  Almost inevitably one of the parents, and sometimes the children, are aggrieved by the decision.  Relationships that are settled can be changed dramatically.  The regularity and frequency of time between children and parents will be different.  The parents themselves can suffer feelings of loss and hurt which they often attribute to the other parent which, in turn, impacts on their abilities to parent constructively and cooperatively into the future.

2. The matter now before me carries with it all of those complexities.  This matter, however, is compounded by the following: 

   i)Litigation consistently over many years between these parents and in respect of [X];

   ii)There being orders apparently resolving the matter as recently as 4 December 2012;

   iii)A history of serious allegations and including of sexual abuse and the consequent need for the parties to re-establish a trusting and workable relationship and also for the child;

   iv)The mother’s unilateral action earlier this year in disturbing what must have been an optimistic status quo established by the orders of 4 December 2012.

3. The mother’s proposal has a number of attractions.  She is historically the primary parent.  Her parenting of [X] is not criticised in its physical sense and as a provider.  She has [X]’s young sister living with her.  Undoubtedly [X] expresses a preference to live with his mother. 

4. However, there are also a number of positives in the father’s proposal.  [X] has experienced many changes of living arrangements and relationships in his young life and the father can now provide some certainty and prevent yet a further change for [X].  The child is progressing well both academically and socially.  [X]’s previously tenuous relationship with his father has developed positively and arguably should not be subject to further change.  Whilst Mr Sully rents a property subject to a lease, I am confident from his evidence that he will do his utmost to provide stability of schooling and accommodation for his son. 

5. Despite the positives in her argument, there are some difficulties with Ms Exelmans’ proposal and from her own history. I am satisfied that she unilaterally changed [X]’s living arrangements and by doing so she either caused or potentially caused a negative impact on his relationship with his father. Any unilateral parenting act, particularly by someone who is well familiar with the Family Law system, raises questions as to that parent’s insight and understanding of the need to prioritise children’s relationships with their parents just as the Family Law Act does in the primary consideration at section 60CC(2)(a).

6. In her final submissions, counsel for the independent children’s lawyer caste doubt on the veracity of Ms Exelmans’ evidence in respect of the chronology of and motivation for her move from [B] to Sydney.  I share those concerns.  Whilst undoubtedly she has removed herself from her relationship with Mr W with some trepidation and wishes to geographically remove herself from him, I am not satisfied, on the evidence before me, that the mother is as fearful of recrimination from Mr W as she deposes.  I note that Mr W has properly enlisted the Family Law system in respect of his relationship with [Y].  There is no evidence of the mother obtaining an intervention order against him even during the period prior to her leaving [B].  I note the coincidence of her move to Sydney and the establishment of a domestic relationship with Mr P.  On the evidence before me I have a strong suspicion that the mother’s motives were, at least in part, self-interest in moving from [B] to Sydney.  In doing so she disregarded the effect and the spirit of the consent orders of 4 December 2012. 

7. Similarly, I remain unconvinced as to the mother’s alleged reasons for, firstly moving to Sydney, and then insisting on remaining in Sydney.  She says that she is doing a diploma course in [omitted].  It eventuates that she is doing the course “online” with, however, the need for 200 hours practical experience.  It is difficult to understand why such work experience could not be obtained in Victoria, even if in Melbourne.  The mother says that she was living in a home in [B] in a bad area.  This, however, was the situation when she entered into the consent orders on 4 December 2012.  She says she has family in New South Wales.  However, after cross-examination it seems that the majority of her family live in Victoria and in the [omitted] area, whilst she has one sister only living in New South Wales but she being in [omitted], some hour or more away from the mother’s home.  She says that she is fearful of her ex-partner.  As mentioned above, I am not satisfied that evidence has been adduced to corroborate this assertion.  The mother asserted variously that she was in a stable and beneficial domestic relationship with Mr P.  On another occasion she said that he was immaterial to her either moving to Sydney or remaining there. 

1. Whilst it is true that the courts have stated clearly that a parent wishing to relocate does not need to show compelling reasons in support of such an application, there must, in my view, be some reasons of sufficient weight supportive of the proposal which would significantly change the nature of the relationship between the child and the remaining parent.  I am not satisfied that the mother has made out a case accordingly.  On the evidence before me I strongly suspect that her move to Sydney was motivated in a large part by self-interest.

2. I remain concerned that [X] would be further uprooted by the mother’s proposals.  Whilst I give some real consideration to [X]’s stated views and preferences including the effect on him and any impact on his relationships with both his father and his mother of orders against his views, I find some merit and place some real weight of the observations and conclusions of Mr L.  I accept Mr L’s evidence that [X]’s relationship with his father would suffer from a relocation. I accept Mr L’s evidence also that [X]’s relationship with his mother might, in fact, benefit by him living with his father in that the relationship between mother and son can become a more hierarchically proper and healthy one rather than the enmeshed and protective roles that [X] now seems to assume.

3. For all of these reasons, and after balancing all of the considerations, I am of the view that [X]’s best interests are served by living with his father in [B]. 

4. It is of course important for [X] to maintain a regular and frequent relationship with his mother and his sister within the constraints of distance, travel and finances.  He should share his holiday time between his parents but with all of the July holiday with the father so as to accommodate their shared interest in skiing.  He therefore would spend all of the April/May holidays with the mother.  The financial positions of these parents and including the lack of evidence from the mother’s partner makes any order for formal weekend time impractical.  Such time will be by agreement.  Neither party is in a strong financial position.  The father works only part-time.  The mother is dependent upon Mr P for financial support. It is unlikely that the father, however, will receive any child support from the mother over and above the statutory minimum. He will therefore have the almost sole responsibility for the financial support of [X]. In those circumstances I am of the view that the mother should be responsible for the costs of travel to her.

5. I am satisfied that [X]’s best interests are served by an order for his parents to exercise equal shared parental responsibility.

6. Finally the mother had filed a Contravention application on 24 June 2013.  She elected to discontinue that application before the start of the trial.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  26 July 2013