TMG and DAG - [2004] FMCAfam 652

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TMG & DAG

[2004] FMCAfam 652

FAMILY LAW – Children – where father proposes relocation to Queensland – mother opposes relocation – wishes – contact – risk assessment – structure for contact in favour of mother considered – father’s relocation application refused – parties poor communicators – post order counselling ordered – joint parental responsibility considered.

Family Law Act 1975, ss.60B, 65E, 68F(2)

B and B: Family Law Reform Act (1997) FLC 92-755
A v A: Relocation Approach (2000) FLC 93-035
H v W (1995) FLC 92-598
Makita (Australia) P/L v Sprowles 52 NSWLR 705
U v U (2002) FLC 92-112

Applicant:

T M G

Respondent:

D A G

File No:

PAM133 of 2003

Delivered on:

18 November 2004

Delivered at:

Parramatta

Hearing dates:

20 & 21 September 2004

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr G. Gersbach

Solicitors for the Applicant:

Astley Thompson Cox

Counsel for the Respondent:

Ms R. Druitt

Solicitors for the Respondent:

Dignan & Hanrahan

ORDERS

That all prior contact orders are discharged.
The father and the mother have joint responsibility for making decisions about the long term care, welfare and development of “the child” Cate born in 1998.
The father and the mother have sole responsibility for making decisions as to the day to day care, welfare and development of the child whilst she is in their care.
The mother have contact with the child as follows:
(a)From 9.00 am until 5.00 pm each alternate Saturday commencing 20 November 2004 and continuing until 14 January 2005.
(b)Commencing the first weekend after school term commences in 2005 from 10.00 am Saturday until 5.00 pm Sunday each alternate weekend.
(c)Commencing the first weekend in March 2005 when contact is due weekend contact shall extend so that it commences at 5.00 pm Friday.
(d)From 9.00 am Boxing Day 2004 until 5.00 pm 30 December 2004.
(e)From 10.00 am 16 January 2005 until 5.00 pm 21 January 2005.
(f)Commencing with the end of term one 2005 for one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement being the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
(g)In the years when the child is in her father’s care for the first half of the Christmas Holidays, from 3.00 pm Christmas Day until 6.00 pm Boxing Day.
(h)On the child’s birthday as follows:
(i)If the birthday falls on a school day, from after school the evening prior to her birthday until 6.00 pm in years ending in an even number. In years ending in an odd number from after school on the child’s birthday until 6.00 pm.
(ii)If the child’s birthday fall on a non-contact weekend from 9.00 am to 1.00 pm on her birthday.
(i)For Mother’s Day in each year if it falls on a non-contact weekend from 9.00 am to 5.00 pm.
(j)By telephone each Wednesday between 6.30 pm and 7.00 pm in this regard the mother shall telephone the father on a landline number nominated by him. In the event that the child is unavailable the father shall ensure that she returns the mothers call within 24 hours on a landline number nominated by her.
(k)At such other times as agreed between the parties.
Commencing at the end of term 1 2005, weekend contact is suspended during school holidays.
Unless otherwise defined in these orders school holiday contact shall:
(a)Commence at 10.00 am;
(b)Conclude at 5.00 pm;
(c)Be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)Pupil free days are deemed to be part of school holidays;
(e)Years ending in a zero are defined as years ending in an even number.
After a period of block school holiday contact, contact shall resume on the first weekend after school has resumed if the mother has exercised contact during the first half of the holidays AND on the second weekend after school has resumed if the mother has exercised contact during the second half of the holidays.
Excluding Christmas Day if a contact period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Monday.
That the mother’s contact is suspended in the following circumstances:
(a)If Father’s Day falls during contact from 9.00 am on Father’s Day.
(b)On the father’s or the child’s birthday’s for 2 hours on a school day or 4 hours on a non-school day.
(c)In those years when the child is in the mother’s care in the first half of the Christmas school holidays from 3.00 pm Christmas Day to 6.00 pm on Boxing Day.
For the purpose of contact changeover the father shall deliver the child to the mother at the entrance of the restaurant at McDonalds Glenmore Park and the mother shall return the child to the father at McDonalds Narellan Park.
If the father’s parents accompany him to contact changeover father shall ensure that they do not participate in the changeover or come within 50 metres of the changeover point.
The father is restrained from listening to or recording the child’s telephone conversations with the mother or permitting any other person to do so.
Both parties are restrained from speaking about the other in a critical or unpleasant fashion within Cate’s hearing or allowing any other person to do so.
If either party intends to take the child on holidays or take the child away from their normal place of residence for a period of in excess of 48 hours they shall give the other party prior written notice of the intended date of departure; the proposed destination and address, mobile telephone or landline number where the child can be contacted.
The father forward or cause to be forwarded to the mother by ordinary pre-paid post no later than 14 days after receipt by the father of same, copies of all school reports and any other specifically addressed reports, in relation to the said child.
Each of the parties be entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each party keeps each other informed of all medical, dental and other health related treatment being undertaken by the child.
Both parties give each other not less than twenty one (21) days notice in writing of their intention to change address.
Both parties shall keep the other advised of contact telephone numbers. These telephone numbers are to be used for telephone contact or otherwise in relation to matters concerning the children only.
Pursuant to s.62F2 the parties attend a post separation parenting program to facilitate improved communication between them. The parenting program will be that arranged for them by the Director of PDR Services of the Federal Magistrates Court.
The father’s relocation application is dismissed.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings shall be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM133 of 2003

T M G

Applicant

And

D A G

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by T M G (“the mother”) for contact to the parties’ daughter Cate (not her real name). As part of her application for contact, she asks for an order restraining D A G (“the father”) from changing the child’s residence. The mother’s application pre-empted the father’s plans to move from Sydney to a town in South Eastern Queensland. T he first notice that the mother had that the father planned to move was when she received his response to her contact application.

The applications

The mother started these proceedings when she filed her application on 25 March 2004.
At the start of the hearing the mother’s counsel indicated that she asked the court to make orders in accordance with her amended application filed 1 September 2004. The orders that she asks the court to make are set out below:
1.That orders 6 and 6A of the final parenting orders made at the Family Court of Australia, Parramatta registry on 19 September 2001 be discharged.
2.That the child of the relationship, namely, Cate born in 1998 shall have contact with the applicant mother at the following times:
(a)For a period of two months from 9 am to 5.30 pm Saturday each alternate weekend.
(b)At the expiration of two months and for a further two months, each alternate weekend from 9 am Saturday to 5.30 pm Sunday.
(c)At the expiration of a four month period being each alternate weekend from 5.30 pm Friday to 5.30 pm Sunday and extending to 5.30 pm Monday in the event of a long weekend.
(d)Commencing the Christmas 2004 school holidays, for half of all of the New South Wales school holiday periods at times agreed upon by the parties and failing agreement for the second half of the short school holiday periods (except as provided below for Christmas and Easter holidays).
(e)On Mother’s Day from 9.00 am to 5.00 pm each year.
(f)On the child’s birthday from the conclusion of school to 6.00 pm if such birthday falls on a school day and from 9.00 am to 1.00 pm if such birthday falls on a weekend.
(g)From the year 2004 and each alternate year thereafter, from 10.00 am Christmas Eve to 3.00 pm on Christmas Day.
(h)From the year 2005 and each alternate year thereafter, from 3.00 pm Christmas Day to 6.00 pm on Boxing Day.
(i)For a period as agreed between the parties on the mother’s birthday and failing agreement for two hours on a school day and for four hours on a non-school day.
(j)By telephone each Wednesday between 7.00 pm and 7.30 pm with the mother to contact the child on the landline number supplied by the father.
(k)For other times as agreed between the parties from time to time.
3.That the mother have sole responsibility for the day to day care, welfare and development of the child whilst the child is in her care.
4.That the father have sole responsibility for the day to day care, welfare and development of the child whilst the child is in his care.
5.That both parties shall have joint responsibility for the decisions which affect the child’s long term care, welfare and development and the father shall consult the mother as far as practicable with respect to the implementation of those orders.
6.That the mother’s contact be suspended in the following circumstances:
(a)If Father’s Day falls on a day when the child would otherwise be residing with the mother, her residence to be suspended from 9 am to 5 pm on Father’s Day.
(b)   From the Christmas school holidays in the year 2004, residence pursuant to clauses 2(e) be suspended during school holidays.
(c)    In the event that the father’s birthday or the child’s birthday falls during a period when the mother would otherwise have residence that the mother’s residence be suspended for 2 hours on a school day or 4 hours on a non-school day.
(d)   From the year 2004 and each alternate year thereafter, from 3.00 pm Christmas Day to 6.00 pm on Boxing Day.
(e)   From the year 2005 and each alternate year thereafter from 10.00 am Christmas Eve to 3.00 pm on Christmas Day.
7.From Easter 2005 that in years ending in an even number that the child reside with the mother for the first half of the Easter school holidays and reside with the father for the second half of the Easter school holidays.
8.From Easter 2005, that in years ending in an even number that the child reside with the mother for the first half of the Christmas school holidays and reside with the father for the second half of the Christmas school holidays.
9.From Christmas 2005, that in years ending in an even number that the child reside with the mother for the first half of the Christmas school holidays and reside with the father for the second half of the Christmas school holidays.
10.From Christmas 2005, that in years ending in an odd number that the child reside with the mother for the second half of the Christmas school holidays and reside with the father for the first half of the Christmas school holidays.
11.That the father shall:
(a) Immediately advise the mother in the event of any medical emergency concerning the child whilst in his care.
(b)   Do all things and provide all consents necessary to enable the child’s school to forward to the mother all copies of any correspondence relating to any of the child’s school, sporting or cultural events including parent-teacher night interviews and assemblies and the mother shall be invited and permitted to attend such events.
(c)    Do all things and provide all consents necessary to enable the child’s school to forward to the mother copies of all school progress reports, newsletters and copies of the school photographs so the mother shall be able to purchase those photographs at her expense.
12.That for the purpose of implementing the contact set out in order 6 herein, the parties shall meet with the child at McDonalds, Glenmore Park at the commencement of the contact period and at McDonalds, Narellan at the conclusion of the contact period.
13.That the husband shall be injuncted and restrained from seeking to relocate with the child a distance greater than three hours from his current residence at Campbelltown in the state of New South Wales.
14.That the parties shall keep the other informed of their respective addresses, telephone numbers and any details of any change of address or phone number.
The father asked the court to make orders identified in his amended response filed 27 August 2004. The orders he seeks are set out below:
1.That Orders 6, 6A and 7 of orders made on 19 September 2001 be discharged.
2.That the respondent father be entitled to relocate to reside with the child Cate born in 1998 in South East Queensland.
3.That in the event the child Cate is residing in Queensland then contact between her and the applicant mother occur on the following basis:
(a)Telephone contact each Wednesday between 6.30 pm and 7.00 pm.
(b)During one week of each of the term 2 and 3 Queensland school vacation periods.
(c)During one week of the Christmas Queensland school vacation period as follows:
(i)Commencing 27 December in 2004 and each alternate year thereafter.
(ii)Commencing 23 December 2005 and each alternate year thereafter.
(d)On such other occasions in Toowoomba should the applicant mother travel to the same as agreed.
(4)That for the purpose of contact pursuant to orders 3(b) and (c) above the applicant father shall cause the child to be delivered to the residence of the maternal grandparents at commencement of contact periods and the applicant mother shall return the child to the same location at conclusion of contact periods.
(5)In the event that the child Cate born in 1998 is in the Sydney metropolitan area contact with the applicant mother shall occur on the following basis:
(a)   Each third Saturday from 10.00 am until 2.00 pm
(b)   In the event that the applicant mother exercises contact pursuant to sub-paragraph (a) above for a continuous period of six (6) months without failure to attend for contact, each third Saturday from 10.00 am until 5.00 pm.
(c)    In the event that the applicant mother exercises contact pursuant to sub-paragraph (b) above for a continuous period of six (6) months without failure to attend for contact, each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday.
(d)   During one week of the Christmas New South Wales school vacation period as follows:
(i)Commencing 29 December in 2004 and each alternate year thereafter.
(ii)Commencing 23 December in 2005 and each alternate year thereafter.
(e)   Telephone contact each Wednesday between 6.30 pm and 7.00 pm.
(6)That weekend contact be suspended during the Queensland school vacation periods if the child is residing in Queensland or during the New South Wales school vacation periods if the child is residing in New South Wales.
(7)That during contact periods the applicant mother shall ensure that:
(a)   She attends to the supervision of the child at all times and shall not leave the child un-supervised with Michael.
(b)   That the child is not left in her absence in the company of any other person other than the maternal grandparents.
(c)    That the child has her own bedroom and bed for her accommodation during overnight contact periods.
(d)   That the applicant mother or any other person does not smoke in the presence of or the immediate vicinity of the child.
(8)That the applicant mother be and is hereby restrained from having any procedure undertaken or effected upon the child including, haircuts, body piercing, ear piercing and the like unless a required medical emergency procedure.
(9)That each party shall keep the other advised as to particulars of their current residential address and landline contact telephone numbers or any change in the same.
(10)That each party be and is hereby restrained from approaching within 100 metres of the residence of the other party.
(11)That the applicant mother pay the costs of and incidental to these proceedings of the respondent father.
Pursuant to s.62G(2) of the Family Law Act 1975 I ordered that a family report be prepared for the final hearing. Court Counsellor Jeanette Buckingham conducted a series of interviews on 19 and 20 August 2004. Underpinning the court counsellor’s recommendation is her assessment, “Despite the considerable lack of contact between Cate and her mother and brother she has clearly maintained a loving and supportive relationship with them, which suggests she will benefit from regular, frequent and extended contact with them. Cate has expressed a wish to continue in her relationship with them and by her account, anticipates feeing “Sad and scared and unhappy” should she lose her contact with her mother.” The court counsellor recommended, “Should the court be satisfied that Cate is not at significant risk from her maternal family, this assessment suggests that Cate’s interests would be best met by an order for her to have frequent, un-supervised overnight contact with her mother and brother, as proposed by T M G”[1].
[1] Exhibit A

Current orders

On 19 September 2001 the parties reached agreement concerning the adjustment of property and arrangements for Cate. Insofar as their agreement concerns Cate, consent orders were made in the Family Court to the following effect:
·That Cate lives with the father.
·That the mother have contact a) each alternate weekend from 10 am Saturday until 5.30 pm Sunday or 5.30 pm Sunday on a long weekend b) for four weeks each year during school holidays, with no individual period to be longer than two weeks c) On Christmas Day in 2002 and each alternate year thereafter d) On Boxing Day in 2001 and each alternate year thereafter e) reasonable telephone contact.
·Contact changeover to take place at Liverpool Police Station

These orders were varied and this court made interim contact orders on 14 May 2004. The current consent interim orders are set out below:
By consent, pending further order and without prejudice:
1. That all existing orders for contact in respect to the child Cate born in 1998 be suspended.
2. That the mother have contact with the child as follows:-
(a) every third Saturday from 10:00am to 2:00pm commencing 22.5.04.
(b) by telephone each Wednesday between 6.30pm and 7.00pm with the mother to initiate such contact.
3. That for the purpose of contact pursuant to order 2(a) contact shall commence by the mother collecting the child from the inside of Camden Police Station at commencement of contact and she shall return the child to the same location at conclusion of contact.
4. That the mother shall ensure that she attends to the supervision of the child at all times during contact periods and that the child is not left in her absence in the company of any other person.
5. That the mother be and is hereby restrained from having any procedure undertaken or effected upon the child including haircuts, body piercing, ear piercing and the like unless a required medical emergency procedure.
6. That each party shall keep the other advised as to particulars of their current residential address and landline contact telephone numbers or any change in same.
7. That each party be and is hereby restrained from approaching within 100 metres of the residence of the other party.

Background facts

The father was born in 1960 and is thus 43 years old.
The mother was born in 1965 and is thus 39 years old.
The mother’s son, Michael was born in 1990.
The parties commenced cohabitation on 17 March 1994. They married on 6 November 1994.
Cate was born in 1998.
The parties separated on 22 February 2001 when the mother and children left the former matrimonial home at Campbelltown.
On 9 April 2001 the parties met at a café in Campbelltown at which time the mother agreed that the father could have the child for one week. Cate has lived with her father ever since.
On 12 April 2001 Campbelltown Local Court dispensed with service of the father’s application for parenting orders upon the mother. The court made a final residence order in the father’s favour and ordered that the mother have reasonable contact.
On the mother’s application for parenting orders, Blacktown Local Court made consent orders on 2 May 2001 providing that she would have contact each Saturday between 10.00 am and 2.00 pm supervised by the paternal grandfather.
Further interim orders were made at Camden Local Court on 31 May 2001 whereby the parties agreed that Cate would reside with the father and have contact each weekend with the mother from 10 am Saturday until 5 pm Sunday.
On 26 June 2001 an interim apprehended violence order was made for the father’s protection from the mother.
On 19 September 2001 final orders were made by consent in the Family Court of Australia at Parramatta.
On 21 September 2001 the domestic violence proceedings concluded and a twelve-month apprehended violence order was made for the father’s protection from the mother. The order was made in the usual terms, including orders under section 562B(c) and that the mother not assault, molest, harass, threaten or otherwise interfere with the father, come within 100 metres of his home or work place and that she must not destroy or interfere with his property.
On 25 August 2002 a Decree Nisi dissolving the parties’ marriage became absolute.
In October 2002 the mother says that in response to her enquiry the child told her that her father had hurt her. The mother reported to the Department of Community Services that the child said that her father had touched her inappropriately. At contact change–over about two weeks later the mother confronted the father to the effect that he had been touching Cate inappropriately. He was outraged and denied her allegation.
Because the mother had returned Cate to the father, DOCS later contacted him to arrange an interview with Cate. The father and his parents took Cate to Liverpool where DOCS and JIT workers interviewed her. During this interview Cate denied that her father had hurt her and told the JIT officer that Michael had touched her. Where, when or how he touched her was not clear. No further action was taken by DOCS or JIT.
In late October 2002 the mother asked the father to provide holiday contact from 21 to 29 December 2002. These holidays were to be the mother’s first period of block holiday contact.
On 26 October 2002 the father informed the mother that he had pre-booked arrangements to visit his sister in Queensland and that she could not have the block contact she was seeking. Instead he offered her two weeks of block contact after he returned from holidays. Because she had made plans to take both children to visit her mother at Port Macquarie, the mother was distressed by the father’s refusal. Later holiday contact meant that the children would not have the same opportunity. At that stage neither party was in paid employment and holiday arrangements were not hampered by work place commitments.
On 21 November 2002 the father gave the mother a solicitor’s letter alleging that Cate said that Michael had touched her inappropriately. Notwithstanding the mother’s calls to the Department of Community Services requesting information and offering to have Michael attend for interview, their investigation was finalised without her or Matthews’ participation. Although the mother was entitled to further information the department’s failure to respond to her inquiries probably reflects that it had already decided against any further action.
On 28 November 2002 the mother filed an application at Penrith Local Court seeking holiday contact on her desired dates. Unfortunately for her, her application was defeated when the proceedings were transferred to the Family Court on 12 December 2002 without any other order being made. This application was then transferred to the Federal Magistrates Court. When the matter came before the court on 20 January 2003 the mother failed to appear. She was angry and depressed and decided that she would not proceed. The court ordered her to pay the fathers costs in an amount of $332. The costs remain outstanding.
In late November 2002, probably after her application failed to achieve its desired outcome, during a telephone conversation the mother told the father that she was giving up on contact. The father denies receiving any such call. However, one of the remarkable features of this case is how differently and poorly these parties communicate. The mother is emotional and blunt, combative when challenged and easily frustrated. The father is quiet and determined, almost inarticulate with shyness. He appears to have designed strategies that involve shutting the mother out as much as possible in order to cope with her. I consider it likely that he shuts out as much of her conversation as he possibly can. Because the central issue was holiday contact, on which he knew he would not compromise, it is likely that the father ignored the mother’s statement that she would give up contact or dismissed it as ravings. The parties need expert assistance in order to improve their capacity to communicate with each other. They will be ordered to attend post order counselling.
The mother failed to attend contact for three consecutive weekends in December 2002. Other than the conversation referred to above, she did not tell the father in advance that she would not be exercising contact. Nor did he call her to inquire why she failed to arrive. All together the mother missed five weekends contact between September 2001 and Christmas 2002. The early instances occurred because the mother decided to pursue other interests. On one occasion she told the father she was not attending. She failed to attend on the later occasions because she was frustrated in her dealings with the father and felt unable to cope with what she perceived were his and his parents critical and rigid approach to her relationship with Cate, particularly in relation to contact.
On 25 December 2002 the mother visited Cate briefly at the father’s home. She next saw Cate for a few minutes on Easter Sunday 2003 and then not again until May 2004.
Although the mother was not attending for contact the father continued to take Cate to Liverpool Police Station in case the mother changed her mind and wanted to see Cate. Accompanied by his father he and Cate waited in vain for the mother each alternate weekend. In mid May 2003 the father decided that he would no longer subject Cate to the disappointment of her mother’s failure to attend and stopped taking her to the police station. Nonetheless from mid May 2003 until 13 March 2004 the father had his father attend the police station at the ordered changeover time in case the mother arrived to see Cate.
The mother contacted the father in late 2003 and asked if he would let her resume contact with Cate. He refused. At about the same time she applied for legal aid assistance. Legal aid agreed to fund a mediation conference, which the father refused to attend. Upon his refusal the mother was granted legal aid for these proceedings. On the first court date interim consent orders were made by which contact resumed by telephone and for four hours each third Saturday. In total there had been a sixteen months gap during which contact did not occur.
Telephone contact resumed on 19 May 2004 and face to face contact resumed on 22 May 2004. Since then contact has taken place each third Saturday for four hours. Although the father alleges that Cate is unsettled and does not enjoy contact, it is plain from the Family Report that she enjoys her time with the mother and wants to see more of her.
On 11 August 2004 the mother became aware that the father was taping her conversations with Cate.

The mothers circumstances

Presently, the mother resides with Michael at Glenmore Park. Until recently she lived with a flat mate who has recently moved out. The rent for her home is $470 per fortnight, more than the mother is able to afford. She is planning to move into cheaper accommodation in the Penrith area. She and Michael each have their own bedroom and the house is suitable for Cate’s needs during contact. Although the mother is looking for a cheaper home in the Penrith area, she will ensure that the home is suitable for Cate’s needs during contact. The mother last worked shortly before the parties separated. She worked at a Novotel Hotel. Since then she has received Centrelink benefits. Presently, she receives about $600 per fortnight from Centrelink and about $200 per fortnight child support paid by Michael’s father. From this she pays rent and the balance is spent on day to day living expenses.
This year, the mother started a TAFE chef’s course. On 1 October 2004 she was due to commence at 70-hour voluntary position as a chef’s assistant at a Penrith restaurant. Because this involved weekend work, which she thought would interfere with contact, the mother relinquished the position. She is hopeful that she can negotiate with the restaurant’s owner to complete the 70 hours needed to finalise this years study at times that do not interfere with contact. Should TAFE or work opportunities conflict with her availability for contact, the mother says that contact will take priority. Although the father’s counsel submitted that the mother’s prior failure to maintain regular contact revealed that she was unlikely to maintain her stated commitment to contact I accept that the mother is not only motivated, but also emotionally better equipped to maintain regular contact. I have no doubt that she will be better able to deal with contact changeovers if the father’s parent’s are not present. Assuming the mother completes the course requirements for this year’s course, she has a further three years study. Her course work is completed between Monday and Fridays, the days varying depending upon the subject. It is too soon to conclude whether the mother is likely to complete all necessary requirements to qualify as a chef.
The mother had an unsettled childhood. She was adopted not long after she was born. The mother lived with her adoptive mother from when she was twelve months old until 17 years old. Her adoptive mother resides on the NSW mid north coast. Because the mother perceives that her adoptive mother sided with the father when they separated, they are estranged. Their only contact occurs when the mother’s adoptive mother telephones her once or twice a year. The mother is most discomforted by the father’s suggestion that should his relocation application succeed, contact changeover could take place at her adoptive mother’s home.
The mother has managed to locate her biological parents. Her mother lives at Port Macquarie and although they do not see each other often, the mother feels close to her. She does not see her father. The mother and Michael are strongly attached to each other. Michael presented to the court counsellor “as a gentle, well-mannered and friendly young boy.” He told the court counsellor that he enjoys spending time with Cate and would “like to see her a bit longer”. Far from being the “lost cause” described by the father’s mother, he is a credit to his parents. Michael has a good relationship with his father and has contact with him each alternate weekend.
Because the mother has few social supports, when she felt depressed and distressed by the difficulties she was having persuading the father to give her Christmas contact in 2002 she had no one she could turn to in order to discuss her dilemma. The mother resents the strong support the father has from his family and feels they are unnecessarily critical of her and Michael. Unable to cope with her own frustration and without the capacity to consider the father’s refusal of Christmas contact from his perspective, the mother walked away from it. When she did so she did not intend to give up the contact forever. Frustration and depression drove her decision. After some months had past, the mother sought counselling, which she was unable to commence for a further period of months. She attended a counsellor on four or five occasions in late 2003. At the same time the mother started attending an Anglican Church where she found support and strength. Equipped with a different perspective and stronger resolve, the mother sought to re-establish contact. Unlike earlier occasions when her requests for contact on her terms were rebuffed, this time the mother persisted. Using appropriate channels, she sought Legal Aid assistance. She patiently dealt with the father’s denial of her requests for contact and since contact has resumed has diligently attended. She still finds the father’s parents attendance at contact changeover intimidating and is frustrated by the father’s refusal to speak to her. Notwithstanding this she has maintained her commitment for contact. I accept that the mother is emotionally better equipped to maintain contact, even in the face of perceived difficult circumstances, in the long term. The risk that she will again fail to exercise contact on a regular basis appears slight.
The mother has a car and is able to drive to her adoptive mother’s home on the mid north coast or South Eastern Queensland for contact changeover. The mother strongly opposes the father’s planned relocation and believes that his proposal that contact take place only during school holidays deprives her, Michael and Cate of the opportunity to maintain and develop strong family relationships. Although she believes that Cate should live with her, she accepts that Cate loves her father and that in his care Cate is well cared for. Notwithstanding recently she told Cate that she would live with her again, something the father was understandably concerned about. The mother demonstrated little insight into the destabilising effect this would have on Cate. I intend to make orders that restrain this type of behaviour in the future.

The father’s circumstances

The father lives with Cate at Campbelltown. Approximately four years ago he accepted a redundancy from the Australian Taxation Office. He used his pay out to purchase the Campbelltown home. Having accepted his redundancy, the father has devoted himself full time to Cate’s care full time. Now that she is settled at school, he believes he is better able to pursue employment. Although he has had a few job interviews subsequent to his redundancy, none have been successful. The father plans to return to TAFE, studying accountancy and majoring in taxation. This opportunity is available to him whether he resides in Toowoomba or remains in Sydney. The father previously started, but did not complete TAFE studies in an administration certificate. He has never attempted accountancy or associated studies.
The father believes his Campbelltown home is worth about $300,000. It is subject to a $45,000 mortgage, for which he pays approximately $90 per week. Moving to Queensland, the father would sell Campbelltown and after selling costs and discharging the mortgage, would have about $250,000 available. His inquiries indicate that he could purchase a comparable dwelling to that in which he currently resides for between $150,000-$200,000. Upon his move to Queensland, the father hopes to return to work with the Australian Taxation Office. In his affidavit he says the ATO is approximately a one-hour drive from where he hopes to live. During cross-examination, he conceded that it is a 122 kilometres to Brisbane and is about a 90 minutes drive. The ATO is located at Upper Mount Gravatt, which is on the eastern side of Brisbane. It is about a two-hour journey each way. Although the father hopes to return to work with the ATO there is no evidence that he is likely to be offered another position. If there is no impediment to his return to the ATO, it appears he is also able to seek work with the ATO in Sydney or Parramatta. When hours of employment are factored in, if the father worked at Upper Mount Gravatt he is likely to endure a twelve hour door to door working day. Doing so he would see little of Cate during the working week and as a consequence his plans are likely to fail. This is because it is unlikely that Cate would accept his long absences during the day.
Cate is in year 1 at the local public School. Her school reports[2] reveal that she is a polite and well-mannered student who performs consistently well at school. Cate is an avid reader and has received numerous merit certificates for reading, writing, gymnastics and dance. Her school attendance is excellent. Cate has close friends at school and enjoys both the educational and social aspects of school life. She is well prepared for her lessons and any homework is completed.
[2] Exhibit C
The father’s parents, the paternal grandparents live close to Campbelltown. They are intimately involved in Cate’s life and provide their son with advice and practical support in caring for her. The father and Cate eat their evening meal at his parents’ home every night. Both grandparents attend contact changeovers. Neither grandparent, nor the father, speaks to the mother during contact changeover. The adults are estranged and on the father’s side prefer not to communicate with the mother. The grandparents attend because they believe this assists their son and grand daughter. The father is comforted by their presence both in terms of the emotional support he derives and also because their presence limits the mother’s opportunity to berate him. The father complains that the mother was violent towards him during the marriage and after separation he obtained an apprehended violence order against her. Although there have been no incidences of violence in recent years, the father believes that contact changeover should continue at a police station. When I raised my concerns about the suitability of such an arrangement continuing, the parties agreed that if the court considered a police station undesirable, Narellan Park McDonalds would be an appropriate changeover venue. The mother says this should alternate with McDonalds Glenmore Park. As both parents have cars and presently neither is working, it is reasonable that they share equally the effort associated with contact changeover. Thus alternating the McDonalds venue is the appropriate course.

The father’s only sibling, his sister, moved to Brisbane in 1996. After she moved, the grandparents visited her in Brisbane, usually three times a year. In the last couple of years, the father and Cate have visited his sister twice a year. As a result of these visits, the father’s parents decided that South Eastern Queensland is an attractive place to retire to. Both grandparents have now retired and at about the same time as the mother commenced her contact application, the grandparents and father decided that they would move as a family. The grandfather said that the Queensland move is partly motivated by the need to establish boundaries around Cate’s relationship with her mother. I accept the father and his parents’ evidence that Cate was distressed and confused when taken for contact that the mother did not attend. Also, when contact stopped, until she started to adapt to the notion that she did not have contact with her mother. Because the father and his parents believe the mother is unlikely to maintain regular contact with Cate, they seek to limit the frequency of contact. Thus, the child’s disappointment if her mother fails to exercise contact will be less and the consequences of failed contact less distressing. Living in South Eastern Queensland contact is only feasible during school holidays. Thus, Cate faces disappointment from her mother’s failure to exercise contact no more often than four times annually.
Because they are so intimately involved in Cate’s life and her care, the father’s parents will relinquish their plans for retirement in Toowoomba unless the father’s relocation application succeeds. If it fails, the father, his parents and Cate will continue to live in south-western Sydney and from Cate’s perspective, life will remain unchanged – but for the opportunity to have regular and significant contact with her mother and brother.

Relevant Law

Contact and relocation orders are parenting orders. The applicable law is well settled. These proceedings are conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child are the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the parenting arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
When a court is considering a residence or contact application that includes a proposed relocation the Full Court in A v A: Relocation Approach (2000) FLC 93-035 identified the approach which judicial officers should follow in the adjudication of these matters. The Full Court held[3]:
[3] at paragraph 108 from 87,551 to 87,553
"It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way, which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s.60B provide guidance to a court's obligation to consider the matters in s.68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
i)A court will identify the relevant competing proposals;
ii)For each relevant s.68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the court thinks fit having regard to s.60B;
·As one, but only one, of the matters considered under s.68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
iii). On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders, which in both form and substance are congruent with a party's rights under s.92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss.60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.

Section 68F(2) – Determining the child’s best interests

A substantial issue in these proceedings concerns the manner in which the court should treat a child's expressed wish concerning matters relevant to its welfare. Recently the Full Court considered this issue in R and R: Children's wishes (2000) FLC 93-3000. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W (1995) FLC 92-598. "The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children." Once a child's wishes are established the next part of the exercise requires analysis of the wishes followed by a balancing exercise measured against other factors relevant to the child's welfare. The process is described thus: "There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying in a commonsense way as one of the factors in the overall assessment of the children's best wishes.” R and R: Children’s wishes (supra).
Frequently, there is a clear connection between a child’s wishes and the child’s relationship with its parents. This is one of those matters. Although the father and his mother disagree with the court counsellor’s assessment that the child wishes to have regular contact with her mother and has a warm relationship with her, these factors are plain from the family report. To a considerable extent the father and his mother’s opinions concerning Cate’s wishes and relationship with her mother are clouded by their antipathy towards the mother.
The court counsellor spent approximately 1.5 hours with Cate, partly observing her with family members and for about half an hour in individual discussion. The father submits that this time was insufficient for the counsellor to glean an accurate understanding of the child’s wishes and relationships. Essentially, that the report and opinions disclosed therein must be treated cautiously and regarded as superficial. The court counsellor was criticised for skim reading a large bundle of documents and narratives the father gave her during their interviews. These documents and narrative were compiled without regard to their admissibility. Far from criticising the court counsellor for her stance, I consider she took the correct approach to her investigative task. She had primary regard to her own observations, the statements made by the parties and children and her considerable experience. Had the court counsellor considered material that was inadmissible or presented without the agreement of all parties or the authority of the court there was a real risk that the process would have been flawed and her opinion undermined. If the father wanted the court counsellor to consider material that did not form part of the court file the matter should have been re- listed and the court’s permission sought. See Makita (Australia) P/L v Sprowles 52 NSWLR 705
Notwithstanding these comments, it is always the case that the family report investigations give a snapshot of relationships and wishes. Court counsellors, indeed all experts, have a limited amount of time within which to complete their task. Had this court counsellor attempted to investigate complex child abuse allegations and factual issues more complicated than the child’s wishes and key relationships the time allocated may have been insufficient for the task. However, the report makes it clear that the court counsellor understood the key factual issues, the pivotal issues that required investigation and developed a comfortable rapport with the child to the extent that the child was able to discuss important matters, which included explaining her feelings. The father’s complaint that the time was inadequate is motivated by his observations of the manner in which Cate deals with her mother. What he fails to appreciate is that Cate is highly likely to be acutely aware of her father’s and his parents’ disapproval of her mother. Under their watchful eye she is likely to feel constrained by their presence and antipathy towards her mother. With the court counsellor, in a neutral setting she was free to display and discuss her feelings. As must be apparent, I am satisfied that the court counsellor’s opinions are soundly based and that the recommendations must carry significant weight.
During the course of her investigations, the court counsellor spoke with Cate and explored with her, her wishes concerning her relationship with her mother. The court counsellor reports, “Cate indicated positive relationships with all her family. She seemed initially reticent in talking about her mother, and did not include her when asked who was in her family. However, when prompted, she smiled broadly and spoke of her in a positive manner. She said that she enjoyed seeing her mother. Cate did not spontaneously speak of Michael, but, again, when prompted, described him positively. She described him as “Big and he’s my big brother”. She said that she sees Michael only sometimes “when I go to mummies” and that he “plays with me a bit”. She said that they play “fighting” which is “fun”. Cate said that she wanted to continue to see her mother and brother.” I have already made findings concerning Cate’s feelings should she be unable to see her mother and do not repeat them.
With children Cate’s age, the observation session can be even more instructive than the child’s statement. That is because at 6 years old children often do not have the maturity needed to discuss feelings and articulate preferences other than in simple terms. I accept the court counsellor accurately reported on her observations outlined in her report. Thus, I am satisfied,
“At the end of the interview, Cate brightly showed her father the picture she had drawn, then her grandparents. All appeared to respond positively to Cate. However, when Cate asked her father if she could show the drawing to her mother, the father’s expression changed to one of apparent displeasure and he looked at her with an intense and stony faced expression. Nonetheless, Cate ran to her mother, hugged her and eagerly showed her the drawing. The mother responded with apparent delight.
42. Whilst in the observation room, Cate interacted with her mother with a great deal of enthusiasm and affection. A loving bond between them was apparent throughout this assessment. The mother demonstrated interest and warmth towards Cate. She allowed Cate to take the lead in their activities and entered her play world in an easy and natural manner. Cate asked her mother about Michael, who was not present at the first observation. The mother informed her that she would see him another time.
43. In conversations with Cate, the mother conveyed support for Cate’s relationships with the father and Cate’s paternal grandparents. She demonstrated an awareness of Cate’s school friends and asked after them. Cate expressed great reluctance to leave when informed that the observation had finished and attempted to cajole her mother into other activities with her. However, the mother gently coaxed Cate to help her pack up and hug her goodbye. Cate then announced that she wanted to “do one more thing” and she wrote “I love you mummy” on the whiteboard. The mother responded to Cate’s positively and with affection.
44. When observed with Michael and her mother, Cate interacted with affection towards both, who each focussed their attention on Cate. Michael seemed keen to get to know his sister, asking her questions about her likes and dislikes in the context of their play. During their activities, Michael demonstrated warmth, patience and protectiveness towards Cate, allowing her to take the lead and positively reinforcing her activities.
45. Cate made graphic demonstrations of her love for her mother and brother. For instance at the beginning of the second observation, she drew and elaborately decorated “love heart” on the whiteboard, writing “I love mummy” next to it. Later, she added another heart and Michael’s name to this drawing.
46. When away from her father and grandparents, she hugged her mother in a natural and spontaneous manner, demonstrating great warmth towards her. She was also positive and affectionate in her interactions with Michael. When in her paternal relatives presence, she initially maintained her spontaneous shows of affection towards her mother, but at the second appointment she seemed more hesitant and less comfortable about demonstrating affection towards her maternal relatives.”
Here, the court counsellor’s observations reinforce the child’s stated preference for contact with her mother. Given the chance to spend time with her mother, Cate obviously enjoyed it. Their interaction was warm and affectionate. I agree with the court counsellor’s opinion that because of the warmth in their relationship Cate seems to hunger for her relationship with her mother. At only 6 years old, Cate does not have the life experience or personal maturity to understand and weigh up the long-term effect for her of the competing proposals. However, she does know that she wants more contact with her mother than she presently has. Her wishes in favour of contact seem to be driven by the child’s sense of her own emotional needs and her attachment to her mother. In these circumstances the child’s wishes must carry some weight. They weigh in favour of the mother’s application and against the father’s relocation application.
Cate has lived with her father since separation. She was only 3 years old at separation. More than any other person he has been primarily responsible for her day to day care. The father impressed me as having invested time, energy and loving care into his daughter, which is reflected in her strong attachment to him. The fact that the child is settled and happy at school where she is performing well academically and is socially well adjusted indicates that the father provides her with a settled and happy home life. Because the paternal grandparents have been so substantially involved with Cate and are obviously committed to her welfare, it is likely that she also enjoys a strong and loving relationship with them. Long term separation from her father and paternal grandparents is likely to be distressing for her and undermine her sense of wellbeing and stability. Shorter separations, along the lines envisaged in the mother’s application for contact are unlikely to be disruptive. Any disruption is probably only short term and is best managed by a graduated arrangement for contact. This way Cate can adapt to having longer periods of time with her mother and separations from her father, without change that is unnecessarily abrupt.

Despite the recent significant gap of contact between Cate, her mother and brother the court counsellor reported that, “she has clearly maintained a loving and supportive relationship with them”. The strength of a child’s desire for a relationship with her mother and their observed good relationship, prompted the father to claim that it follows that he and his parents support the child’s relationship with her mother and brother. It otherwise, it was submitted that the child would neither desire a relationship nor would she have been as demonstrably enthusiastic for contact with her mother during the observation session. The court counsellor refuted this proposition and said that the key to successful alienation lies in a child’s age and the duration of the process of alienation. Alienation usually takes many years. A child of only 6 years old is usually too young for effective alienation to have been completed. I am satisfied that the father and his parents have not deliberately set out to undermine Cate’s relationship with her mother and brother. Rather, they have been unaware of the effect on Cate of their actions. Although the mother told the father that she would not exercise contact, he continued to take Cate to the designated changeover place. Thus both parties contributed substantially to the child’s disappointment when contact failed to occur. At that time the father was in contact with his solicitors, instructing them to inform the mother of his opinions about holiday contact and the complaint concerning Michael’s behaviour. The father could have resolved any uncertainty he supposedly had concerning future contact by instructing his solicitors to clarify the situation with the mother. Similarly, when speaking with the court counsellor within Cate’s hearing, he and his parents were openly critical of the mother. They gave scant regard to the effect it would have on Cate of hearing their complaints about her mother. He had the opportunity to warmly respond to Cate’s delight in showing her drawing to her mother, yet tried to spoil the child’s delight. Thus while I am satisfied that the father will abide any orders, his home environment is basically un-supportive of the mother and Michael. If he sought to promote these relationships he would have agreed to re-establish contact when asked in 2003. I agree with the court counsellor’s opinion that the father and his parents’ attitude towards the mother pose a grave risk to Cate’s future relationship with her and Michael. So too their attitudes towards Michael place this relationship at real risk.
Another risk to the relationship is the mother’s commitment to contact. Unless the mother and child enjoy frequent and regular contact, this is likely, to undermine Cate’s trust in her mother and in the long term irretrievably damage their relationship. Presently, Cate seems to have accepted her mother’s recent absence and the child’s attachment to her has survived. The attachment is not so strong, however, that it is likely to survive significant unreliability viz contact or long gaps between contact. This is a critical time in the child’s relationship with her mother and Michael. Unless the relationship is nurtured by frequent and extensive contact in the immediate future, the likelihood is that the relationship will fade. Sooner rather than later Cate will have lost her attachment to her mother and brother, probably forever. This is a matter to which I give significant weight and which weighs in favour of the mothers’ application for contact and against the father’s relocation application.
As I have already found, the father’s proposal involves changes to virtually ever aspect of Cate’s life. She would change home, schools, leave behind friends and critically the opportunity for regular contact with her mother and brother. Because she is a vivacious, bright and socially adept child, while changes to school and friends will be disruptive. The disruption is likely to be short term. Supported by her father and his parents Cate will readily adapt to a new home, school and is likely to easily establish new friendships. The only discernible advantage to the father’s application, when examined from Cate’s point of view is that he may feel happier if he achieves the outcome he desires. The father believes that his sister can provide an age appropriate female role model for Cate, something he believes he and his parents cannot offer. What he overlooks is that while his sister may indeed fill this gap in Cate’s life, the person most suited to provide an age appropriate maternal role model is her mother.
By selling his home and discharging his mortgage the father believes that he will be better able to afford private school education for Cate and that long term their financial future is more certain. He is keen to return to the paid workforce, an outcome I consider at least equally available to him should remain in Sydney compared to moving to Toowoomba. Should he actively pursue employment in the Sydney employment market he is likely to be able to readily afford his small mortgage and his and Cate’s reasonable living expenses. Whilst I accept that there is a modest financial advantage to the father if he relocates I am not satisfied that the advantage is so significant that his proposed relocation outweighs the disadvantages for Cate in terms of her relationship with her mother.
As must be apparent from my earlier findings, I am far from satisfied that contact structured around school holidays only is consistent with the child’s best interests. Having re-established contact each three weeks, imposing long gaps between contact is likely to be distressing for the child in the short term and damaging to her relationships with her mother and brother in the long term. I give this factor considerable weight. When there are long gaps between contact the child and parent need to take time familiarising themselves again with each other. The free and easy relationship that is achieved by regular contact is often lost. There is a risk of greater tension in the relationships. This is particularly so when the relationship is vulnerable because of earlier disruption and/or it is not supported by the child’s primary carer. If Cate was older and the father supported her relationship with her mother and contact had been substantial and reliable, I would not be so concerned about the effect on Cate of the relocation. However, these factors, combined with the child’s desire to maintain her relationship with her mother and enjoy it in a meaningful way strongly weight against the father’s planned relocation.
Fortunately, there are no risk issues that require lengthy consideration. The parties’ respective complaints and allegations of child abuse in these proceedings are based on the flimsiest evidence. The mother denied that Michael has ever behaved inappropriately with Cate. There is no reliable evidence that suggests he had. The father’s complaint about this in these proceedings reflects poorly on his attitude towards the mother and Cate’s relationship with her mother and Michael. His complaint that Cate recently told him that Michael had photographed she and the mother using his mobile phone and that this was somehow inappropriate and indicative of risks during contact shows that he is prepared to suspend judgment when it comes to matters concerning the mother. This augurs poorly for his future commitment to Cate’s relationship with her mother. The evidence does not satisfy me that the various restraining orders sought by the father are justified. He has not satisfied me that any of the orders sought are warranted in terms of risk to the child or to him.
Similar criticisms must be made of the mother. Notwithstanding skilled cross-examination concerning her claims that the father had touched Cate inappropriately the mother maintained her stance that something untoward had happened. The mother gave three different accounts of her conversation with Cate, all of which were leading. None included a description of behaviour that the father should be criticised for. There is no doubt that as Cate’s then primary carer, she needed his help with bathing and toileting. There is nothing sinister per se in the child’s revealing that her father had touched her. Notwithstanding the mother’s belief that the father behaved inappropriately she returned Cate to him. This suggests that while at one level she believes something untoward occurred, her knowledge of him persuades her that such behaviour is highly unlikely. The manner in which the mother has reacted to this issue reveals that once she takes a stance, she is unlikely to retreat from it. To an extent it corroborates the father’s evidence that she is a difficult person to compromise with.
As far as possible the court should make orders that minimise the prospect of further proceedings. If the mother fails to exercise regular contact there is a prospect that the father will again apply to change the orders and relocate. Similar issues do not arise if his application is granted. I take this into account. For the reasons already given I am satisfied that regular contact is more likely to succeed than fail. Whilst the prospect of future litigation weighs in favour of the father’s relocation application, it is not a factor when compared to the disadvantages associated with relocation, that carries significant weight.

Conclusion

Since separation Cate has thrived in her father’s care. She is strongly attached to him and, with his parents’ active support, her physical and intellectual needs are well met. I have not lost sight of the father’s right to live where he chooses. However, that right, “must defer to the expressed paramount consideration, the welfare of the child”. U v U (2002) FLC 92-112 at par 89. Unless Cate and her mother enjoy regular, free and relatively easy contact their relationship is at real risk. Put simply, this child needs more frequent and reliable contact with her mother and her brother than the father’s proposal will permit. If the father’s proposal is implemented it is highly likely that the child’s relationship with her mother will fail in the short term, which given its disrupted history is likely to mean that it fails for all time. Such an outcome would be distressing for the child and is likely to be emotionally and psychologically damaging, both short and long term.
Refusing the father’s relocation application has little significance for the child’s emotional, psychological or emotional wellbeing in the sense that Cate’s needs do not drive his application. Whilst she would take the changes associated with settling into new school, making new friends and being in a new home in her stride this is not the real issue. The critical issue in this case is the potentially adverse impact upon her relationship with her mother and brother. Although the father and his parents will be disappointed by the outcome, I am satisfied that Cate’s best interests will be served by remaining in Sydney and exercising regular and frequent contact with her mother.
The orders will give effect to these findings. In addition for orders for regular contact the orders will ensure the mother will be made aware of significant events concerning the child’s health and education. I include an injunction that will restrain the parties from speaking about the other in a negative fashion within Cate’s hearing. This will mean that the mother cannot criticise the father or his parents and she must desist suggesting to Cate that Cate may once again live with her.
I am not satisfied that there is a continuing risk that the mother may physically attack the father. I do not consider changeover at a police station is desirable from Cate’s point of view. Although she is used to it, eventually she is likely to start to wonder what is it about her parents that means police must be involved when they come into contact with each other. The need for that style of changeover, if ever it was necessary, has long passed. Both parties will be able to contain themselves with each other provided contact changeover takes place in a public place. Cate is old enough to move between her two parents without requiring their active assistance and thus changeover at McDonalds is sufficient. The father need no longer bring his parents to contact changeover. If he feels more comfortable with their participation, those accompanying him must not participate in changeover and remain 50 metres from the changeover point. Changeover shall take place at the door of the restaurant. This is likely to make changeover more comfortable from the child’s point of view. If the mother is not discomforted by the father’s parent’s presence she is also better able to maintain her commitment for contact. Otherwise, the orders are largely machinery in their nature and provide for regular and extensive contact between Cate and her mother. The contact is graduated and builds to an outcome which will enable the child and mother to have a meaningful relationship with each other without running the risk of too abrupt a change to Cate’s routine. The pace is geared to build on prior contact, lengthening as time passes. There is no need to be overly cautious about the pace of contact as when Cate was much younger the parties agreed on weekend and holiday contact. When contact occurred it worked well. It is likely to do so again. The parties will share special occasions something Cate will no doubt enjoy. Christmas will alternate between the parties. Telephone contact will take place at the father’s nominated time. This is less likely to interrupt meal times, something which only increases anxiety. If the child is unavailable the father shall ensure she returns her mother’s call within 24 hours. This order does not require the child and father to sit at home each Wednesday waiting for the mother’s call. He is relieved of doing so provided the call is returned.
Notwithstanding my concerns about the parties ability to communicate with each other I will order that they have joint long term responsibility. Thus far parenting decisions have been made unilaterally and although many have been to good effect, the time has come when the parties should both contribute to long term decision making. Both have much to contribute vis a vis Cate’s welfare and she should benefit from both parents’ input. Potentially they may disagree on matters concerning her health, sports and education. Issues concerning her day to day care can be addressed pursuant to the order that gives each parent responsibility for making such decisions on a day to day basis. However, because Cate will be living more substantially with the father, when she comes to make decisions with the father concerning the child’s long term care, welfare and development, the mother must take that reality into account. Ultimately, if these parties cannot agree then a court must adjudicate the particular issue. At the same time there is a possibility that the court would discharge the joint long-term responsibility order. In spite of the prospect of further litigation on this issue, I am satisfied that the child should be given the opportunity for her parents to make these decisions jointly.
Both parents have much to learn in terms of constructive communication which outcome will be materially enhanced by post order counselling. To an extent both need to leave their marital and separation issues behind them and start living for the future. Cate is clearly forward thinking, it is timely that her parents follow her lead.
For these reasons I make the orders identified at the start of this judgment. I am satisfied that these are in the child’s best interests.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 18 November 2004