VILLAR & MEISNER

[2018] FCCA 2499

FEDERAL CIRCUIT COURT OF AUSTRALIA

VILLAR & MEISNER [2018] FCCA 2499

Catchwords:
FAMILY LAW – Parenting – relocation.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 65DAA

Cases cited:

Adamson (2014) FLC 93-622

Sayer&Radcliffe [2012] FamCAFC 209

U v U (2002) 211 CLR 238

Applicant: MS VILLAR

Respondent: MR MEISNER

File Number: BRC 10148 of 2015

Judgment of: Judge Altobelli

Hearing date: 1 August 2018

Date of Last Submission: 1 August 2018

Delivered at: Sydney

Delivered on: 5 October 2018

REPRESENTATION

Counsel for the Applicant: Ms Horsley

Solicitors for the Applicant: Hopgood Ganim Lawyers

Counsel for the Respondent: Mr Streit

Solicitors for the Respondent: Rice Naughton McCarthy Family Lawyers

ORDERS BY CONSENT

1. That paragraphs 8, 11, 17, 23 to 26, 28, 29, 30, 34, 36 and 41 of the Orders made on 11 August 2016 in respect of [X] born 2010 (‘the Child’) be discharged.

Communication

1. That the Child will communicate with the parent with whom they are not spending time with by telephone, mobile, Skype or similar means at all times as may be agreed and failing agreement, each Monday, Wednesday and Saturday between 6.00pm to 6.30pm, with the parent with whom the Child is spending time to facilitate such communication.

2. If either parent intends to travel away with the Child overnight, that parent must provide the other parent with 24 hours’ notice (or, if 24 hours’ notice is not possible, as soon as reasonably practicable) of the proposed travel arrangements.   

Overseas travel

1. That pursuant to section 65Y of the Family Law Act 1975 (Cth) both parents be at liberty to travel overseas with the Child during such periods as the Child is in their care provided:

   (a)The travelling parent provides at least 28 days written notice to the other parent of their intention to travel overseas with the Child, including:

   (i)the approximate departure and return dates;

   (ii)the name of the persons who will be accompanying the Child;

   (iii)the country or countries the Child will be travelling to.

   (b)At least 14 days prior to the departure date, the travelling parent must provide to the non-travelling parent:

   (i)a copy of the Child’s itinerary which must include return airfare ticketing;

   (ii)the dates on which the Child will arrive and depart each country;

   (iii)a landline and mobile telephone number and address at which the Child can be contacted in each country.

2. That the Child’s passport is to be held by the Mother.

3. That the parties do all acts and take all steps necessary to ensure the Child’s passport remains valid at all times with any such renewal costs to be shared equally between the parties.

4. That in the event the Father is to travel with the Child, the Mother shall make the Child’s passport available to the Father at least 7 days prior to the departure date and the Father shall return the Child’s passport to the Mother within 48 hours of the Child returning to Australia.

5. That each parent will provide any details requested in relation to the Child’s passport, such as passport number or expiry date, that they have in their possession to the other parent within 7 days of such a request.

Medical

1. That in the event that the Child is injured or otherwise requires medical or hospital treatment or is otherwise absent from school due to illness, the parent then caring for the Child will immediately inform the other parent via phone, e-mail or SMS message.

2. That if the Child is required to take prescription medication, the parent who purchases it will provide it to the other parent, together with any script and instructions for administration, at changeover, and such medication and documents are to be returned to the first parent with the Child at the conclusion of time.

Specific issues

1. That each party hereby irrevocably authorises any person or institution including but not limited to any doctor, carer, teacher, hospital, Childcare institution, preschool, school and any social, sporting or recreational organisation, to release all and any information (verbal or in writing) requested by either parent in relation to the Child and, for this purpose, both parents shall keep the other informed of the details of any provider for the Child.

2. That the parents shall communicate directly with each other regarding issues concerning the Child, and will not discuss any issues in dispute between the parents with the Child or allow any other person to do so.

3. That neither parent shall use physical discipline on the Child, nor allow any other person to do so.

Family dispute resolution

1. That if the parents are unable to agree about a decision to be made in the exercise of their equal shared parental responsibility or if there is a dispute about the Child or about the interpretation, implementation or enforcement of these Orders, then the parents shall submit to the following dispute resolution process:

   (a)The parent with the complaint (complainant) will provide written details of the nature and extent of their complaint to the other parent (recipient) with a proposal for resolution of the complaint;

   (b)The recipient will provide a written response to the complaint within 14 days of receipt of the complaint with which the recipient disagrees, and if there is a disagreement, a counterproposal for a resolution of the complaint;

   (c)The complainant within 14 days of the receipt of the recipient’s response will provide written confirmation of whether the complainant considers that there is still a dispute;

   (d)If there is still a dispute after (c), the complainant will contact a Family Relationship Centre or Family Dispute Resolution Centre and the parents will participate in mediation about the dispute.

FURTHER ORDERS

1. That the Child will only travel providing their travel is consistent with any recommendations or travel advisory warnings that may issue by the Department of Foreign Affairs and Trade such that the Child will not travel if any of the following warnings are in place:

   (a)Level 2: Exercise a high degree of caution;

   (b)Level 3: Reconsider your need to travel; or

   (c)Level 4: Do not travel.

2. That the Child not be encouraged or allowed to call anyone other than the Mother and the Father “Mum” or “Dad” or any variation of these terms.

3. The Application of Ms Villar filed on 23 October 2017 be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10148 of 2015

MS VILLAR

Applicant

And

MR MEISNER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about [X], born 2010. [X] is 8 years old and currently lives in an equal shared time arrangement with his parents. [X] is a very lucky little boy. He has two parents who love him very much. They are both fine parents. They have done an excellent job in raising him to date. Because of [X]’s Mother’s work, she would like to change the existing parenting arrangement. [X]’s Father would prefer that these changes not be made. These Reasons for Judgment explain why the Court has decided, in a finely balanced decision, and after much deliberation, that there should be no substantive change to the parenting arrangements currently in place for [X].

Background

1. [X]’s Mother is 34 years old and is a (occuptation omitted) in the Australian Defence Force. [X]’s Father is 29 years old.  He has recently retired from the Australian Defence Force (‘ADF’), and currently works as a (occupation omitted). Both parents commenced employment with the Australian Defence Force at a young age, met during the course of their employment whilst they were based at Location A, and entered into a relationship early in 2009. [X] was born in Location A and during the early part of his life his Mother principally cared for him. In early 2011, as a result of the Father’s deployment, they moved to Location B. At about the same time the Mother returned to work for the ADF in Location B. [X] was about 9 months old at this stage, and attended day care at the base barracks where both parents were located. [X]’s parents’ relationship regrettably broke down in mid-June 2011.

2. Shortly after separation the parents agreed informally that [X] would live with his Mother, and spend time with his Father, initially one or two evenings or nights per week, and then progressing to two or three nights per week, which was documented by an informal parenting plan.

3. Throughout the vast majority of [X]’s life, his parents have served in the ADF. This has required both of them to attend training courses and/or to be deployed elsewhere, including outside of Australia. The evidence of both parents indicates that there were periods, therefore, when they were absent and engaged on ADF activities, and the other parent became principally responsible for caring for [X].

4. By about May 2013, the parents had entered into a parenting plan that not only provided for equal shared parental responsibility, but that [X] live with them in an equal time arrangement. Because of deployments and training courses, the arrangement was not necessarily implemented as such. For example, the Mother had a deployment to (country omitted), and subsequently attended a training course in Location C in Queensland. She then returned to live in Location B.

5. In June 2014, the Mother and [X] moved to Brisbane as she had been deployed in an army base there. The Father was also deployed there.

6. In October 2014, the parents experienced difficulty in reaching agreement about [X]’s time with his Father. They have different perspectives on how this disagreement arose and it is both unhelpful, and unnecessary for the Court to explore this issue. In any event, what will be called the first parenting proceedings in respect of [X] were commenced in October 2015, and this resulted in Final Consent Orders dated 1 July 2016. These Orders provide that the parents have equal shared parental responsibility, and that [X] live with them in a week about arrangement. For the most part, this arrangement has been complied with, and continues to be complied with as at the date of the Hearing.

7. One month after the Mother entered into the Consent Orders, she was informed that she had been posted to Location C, outside of Brisbane. She proposed to the Father that she and [X] relocate much closer to her new base, but he declined. This put the Mother in a difficult situation. She applied for, and was granted, an extension of the commencement of her posting in Location C. Nonetheless, by January 2018 she commenced her posting there, as an (occupation omitted) in a non-operational unit. She retained her ADF housing in a suburb of Brisbane and currently commutes to Location C each day. The shared care arrangement continues. Her evidence is that the commute each day takes approximately two hours each way. The Father disputes this evidence, and suggests it probably takes less, perhaps three hours each day. The Court does not need to decide the precise duration of the Mother’s commute each day. Whether it is three hours, or four hours, one can understand her apprehension about this. The Mother was able to negotiate a flexible working plan to work around, as best as possible, the exigencies of both her, and the Father’s service (at the time) in the ADF.

8. It is clear that the Mother’s posting to Location C is for three years, together with a guaranteed one year extension if the Mother so wishes.

9. The second, and current proceedings, were in fact commenced in October 2017. A Family Report was ordered, prepared, and released to the parties. The matter was set down for a one day Hearing on 1 August 2018.

The competing proposals

1. The Mother’s proposal was set out in an annexure to her case outline document filed 18 July 2018. She seeks an order for equal shared parental responsibility, that [X] live with her, and for this purpose be permitted to relocate to the Location C region. The Father would spend time with [X] during school terms, for the first and second weekends in every three weekly block, from after school on Friday until 7:00pm on Sunday. In addition, [X] would spend time with his Father during the entire June/July and September/October gazetted school holidays. [X] would spend one half of the Easter and Christmas gazetted school holidays with each of his parents. There are detailed proposal for special occasions, changeover, communication, overseas travel, medical, specific issues, family dispute resolution, and orders 32 and 33 which deal with future postings. These latter orders require specific mention. The effect of the Mother’s proposed Order 32 is that [X] be permitted to relocate to wherever the Mother is posted by the ADF from time to time, providing such postings are to the South East Queensland region, including (locations omitted). The detailed provisions in the orders sought by the Mother are reproduced in the First Schedule to these Reasons for Judgment.

2. The Mother both in her evidence, and through her Counsel, made it very clear at the Hearing that if her application for relocation was declined she would leave the ADF. Her case emphasised that [X] is her priority, despite her commitment to service in the ADF. The effect of the Mother’s position was that if her application was not successful, she would continue with the existing shared care arrangement, though proposed a number of specific changes to the existing Orders. These are relatively minor, and will be discussed later in these Reasons.

3. The Father’s proposal was attached to his case outline document filed 25 July 2018. His primary proposal was that the Mother’s Application be dismissed. There was an application for costs, which was not pressed at the Hearing. He did advance an alternative proposal in the event that the Mother resided more than 30 kilometres from the school where [X] currently attends. This proposal was that [X] live with him, and spend time with the Mother for two out of every three weekends during the school term, and for half of school holidays. However, the Father agreed at the Hearing that his alternative proposal does not apply in circumstances where the Mother had plainly indicated that she would not move to Location C without [X]. The Father’s main, indeed only proposal, was that the existing shared care arrangement continue. He too proposed a number of relatively minor variations to the existing Orders, which will be discussed later in these Reasons for Judgment.

4. In the Mother’s case, she relied on the following materials:-

   a)Application for Final Orders filed by Ms Villar on 23 October 2017;

   b)Affidavit of Ms Villar filed 11 July 2018;

   c)Affidavit of Ms C filed 12 July 2018; and

   d)Notice of Risk filed by Ms Villar on 23 October 2017.

5. In the Father’s case, he relied on the following materials:-

   a)Response to Final Orders filed by Mr Meisner on 20 November 2017;

   b)Affidavit of Mr Meisner filed 12 July 2018;

   c)Affidavit of Mr Meisner filed 20 November 2017;

   d)Affidavit of Ms S filed 20 November 2017.

6. A Family Report dated 22 January 2018 was prepared by Family Consultant J.

7. The Family Consultant, and all of the deponents of the Affidavits on which the parties relied were required for cross-examination, and were cross-examined.

The applicable law

1. Counsel for the Mother submitted that a useful statement of the applicable law is found in the decision of the Full Court of the Family Court of Australia in Sayer&Radcliffe [2012] FamCAFC 209 at paragraphs 47 to 54. The Court agrees, and reproduces this extract;

[47] It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).

[48] A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan and Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.

[49] The provisions of the Act which form that legislative pathway have been reproduced at length by this Court many times (Taylor v Barker (2007) 37 Fam LR 461, Morgan and Miles (supra), Adams & Randall (2011) FLC 93-482). It is sufficient for current purposes to identify and summarise those sections contained in Part VII of the Act which govern decisions about children, and consider statements of the High Court and of this Court which guide their application in the context of relocation cases:

Ÿ Section 60B – Objects of Part and principles underlying it

Ÿ Section 60CA – Child’s best interests paramount consideration in making a parenting order

Ÿ Section 60CC – How a court determines what is in a child’s best interests

Ÿ Considerations relevant to relocation include:

ú Primary considerations: meaningful relationship with both parents

ú Additional considerations:

- nature of child’s relationship with parents and other persons

- extent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate

- likely effect of changes in child’s circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living

- practical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child’s right to maintain personal relations with both parents on a regular basis

- capacity of each parent and any other person to provide for the needs of the child

ŸSection 61DA – Presumption of equal shared parental responsibility when making parenting orders

ŸSection 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable)

ŸSubsection 65DAA (5) – Factors the Court must have regard to in determining reasonable practicability:

(a) How far apart parents live

(b) Parents’ current and future capacity to implement an arrangement for equal or substantial and significant time

(c) Parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements

(d) Impact arrangements would have on the child

(e) Such other matters the Court considers relevant.

[50] The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.

[51] The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR (2010) 240 CLR 461, an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said (pages 464-465, 467):

(6) Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maxiMum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.

(7) Section 65D(1) provides that the Court […] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. […] Section 65DAB requires the Court to have regard to any parenting [2012] FamCAFC 209 Reasons Page 21 plans entered into between the parties and is not relevant in this case.

(8) Sub-section (1) of s 65DAA is headed “Equal time” and provides: “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”

(Emphasis added.)

Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:

“(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”

Sub-section (3) explains what is meant by the phrase “substantial and significant time”.

(9) Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.

…

(15) Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

(Footnotes omitted. Emphasis added in bold.)

[52] In this case an order for equal shared parental responsibility was made. The orders for time the children have with the father were on an ever increasing basis beginning with 9.00am to 12.00 noon on Saturday, fortnightly to 9.00am to 5.30pm on a Saturday, fortnightly. After May 2012 the time was to include a Wednesday from 2.30pm to 5.30pm. Short periods of time were provided for on special days including Christmas. These orders were hardly substantial and significant time. No reasons were given connecting the orders about time with the father and the order for equal shared responsibility.

[53] There can be no doubt that the decision the Federal Magistrate was required to make was very difficult. All relocation decisions are difficult, not the least because of the serious ramifications involved for the parents and the children. Clarification and guidance has been provided by decisions of this Court. We refer to the approach outlined in Starr & Duggan [2009] FamCAFC 115 (Boland, Thackray & Watts JJ) where their Honours said:

APPROACH TO APPLICATIONS INVOLVING RELOCATION OF A CHILD

33. The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.

34. The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.

35. In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.

36. The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).

37. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.

38. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

• first make findings concerning the relevant s 60CC factors;

• then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and

• then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.

39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.

[54] The requirement to clearly rather than inferentially follow the legislative pathway in relocation cases was confirmed recently by this Court in Heaton & Heaton [2012] FamCAFC 139 (Coleman, Ainslie-Wallace and Ryan JJ). Their Honours said:

32. His Honour was first required to determine the children’s best interests by reference to the well known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents, that is, the father remaining in Location B and the mother wishing to move with the children to Port Macquarie. Although the mother’s “fall back position” of remaining in Location B to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour’s failure to adequately evaluate her application to relocate and misapplication of the section.

33. It is only in this way that his Honour could have properly considered all of the relevant factors to come to a determination of the children’s best interests.

34. His Honour was then obliged to consider the provisions of s 65DAA(1).

35. As the plurality of the High Court said in MRR v GR (2010) 240 CLR 461 at page 466:

Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of the order… A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist…

36. Their Honours continued:

His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances…

37. We regretfully conclude that his Honour erred in his determination of the issue of equal shared time. By conflating the disparate issues of “best interests” and “reasonable practicability” the Federal Magistrate’s reasons for judgment do not demonstrate substantive, if not formal, adherence to the legislative pathway. As is apparent from a reading of them, with respect to his Honour, his consideration of each issue was vitiated by its dependence upon conclusions or assumptions with respect to the other issue. His Honour was required to first consider whether equal time was in the children’s best interests pursuant to s 60CC. If he concluded that it was, it was then necessary to consider the parties’ competing proposals and determine whether equal time was reasonably practicable. He did not do this.

38. These errors are such that the appeal must succeed. As the High Court said in MRR v GR (supra), the determination of both of the questions in s 65DAA(1) provide the source of jurisdictional power to make the order to which the section refers. It is not sufficient to argue that although his Honour’s findings do not follow that “pathway” when read as a whole, inferentially, it may be said that he made the determinations required of him in s 65DAA.

39. It is unnecessary for us to consider whether, generally, a “slavish” pursuit of the “legislative pathway” is not essential.

(Emphasis added in bold)

The Family Report

1. It is convenient to deal with the evidence contained in the Family Report, and in the cross-examination of the Family Consultant. Unlike the evidence of the parents, and their witnesses, the Family Consultant’s evidence is both expert, and independent.

2. The Family Report was based on interviews conducted on 10 January 2018. It correctly sets out the current arrangements, relevant family background, and history of the dispute. The proposals of the parties referred to in the Report were correct at the time of the interviews. The Mother’s proposal at the time was that [X] live with her in Location C, and spend each alternate weekend with his Father. She, of course, changed her proposal at the Hearing to two out of three weekends with the Father. The Family Consultant was appraised of this change at the very early stages of her evidence.

3. It is important to record that at paragraphs 35 to 38 of her Report, the Family Consultant could not identify any family violence and abuse, child protection issues, alcohol and substance use issues, or mental health issues. That is entirely consistent with the totality of the evidence before the Court.

4. The Family Consultant discussed the issues in dispute between the parties, including the reasons for the Mother’s relocation to Location C, and the reasons for the Father’s opposition to the same.

5. The Family Consultant describes both parents in terms of their presentation, and the experiences of the other that were related to the Family Consultant. This evidence is consistent, in effect, with the parties’ own evidence, and with the Court’s impression of the parents after having seen them in the witness box. These are two very good parents who, nonetheless, struggle to communicate at times, and who find it hard to trust each other at times. Notwithstanding this, they seem to have done an exemplary job of raising their son, who appears not to show any of the behaviours that are usually found in cases involving highly conflicted parents.

6. The Family Consultant met with [X], and this is the record of her meeting, and observation of him. It is found at paragraphs 78-85 of her report:-

   [78] [X] is 7 years old. He is quietly-spoken and he has a soft, gentle manner. I formed the impression that he can slip quietly into the background without being noticed. That said, he related easily and warmly during his individual session.

   [79] He will be in Year 3 this year. He has one particularly close friend, [J] , but I would be confident that he has many other friends with whom he plays.

   [80] He told me that he spends a week with each of his parents. He thought that it might be better if he spent two weeks with them. Asked to explain, he said that he would get to see them for more time.

   [81] He didn't know whether he would prefer to spend more time with Mum or more time with Dad. He loves spending time at both places. One is not better than the other - but sometimes [C] and [D] annoy him when he wants to build his lego by himself and [D] destroys it.

   [82] He said that Dad generally takes him to before-school care and [Ms S] (his name for Ms S) picks him up from after-school care. When he is with Mum, he doesn't need to go to after-school care because she is always there to collect him. He likes going straight home, but he also likes after-school case because sometimes [J]  is also there.

   [83] He doesn’t know what to think about Mum going to work at Location C. He doesn’t like the idea of moving away from [J]  but, on the other hand, he would be closer to his cousins and he really likes them.

   [84] He told me that he likes (sport omitted). He didn’t like it at one stage because some people made him fall over on his leg and he had to sit out. But after he ‘smashed’ a couple of people in another game, he likes it again.

   [85] He related comfortably and affectionately with members of both households. I have only positive comments to make about their approaches to parenting and his care.

7. The Family Consultant’s evaluation is found at paragraphs 86-100, and is in the following terms:-

   [86]  The parents were relatively young when they got together. They made the decision to start a family quite quickly. They have very different personalities and they were clearly not a good match. They separated when their only child, [X], was 14 months old.

   [87] Although they have both worked full-time in the Army, they have managed an equal-time care arrangement from then until now. The only major exception to this was from mid-2013 until mid-2014 when Ms Villar was deployed to (country omitted) for five months and she then undertook a 6 month training course at Location C. [X] lived with his father full-time while she was away and he lived with her while she was in Location C.

   [88] On the face of it, [X] may have spent greater time overall in Ms Villar’s care since Army requirements meant that Mr Meisner was away for short-term periods with callouts and training exercises. I am disinclined to place much significance upon this however when taking a broader view of the child's care.

   [89]. I focussed a considerable amount of time during this assessment on the parenting relationship. I have formed the view that there are significant tensions in this, notwithstanding the number of intervening years since separation. Nevertheless, despite their different personality styles, they hold very similar values, expectations and routines. Their commitment to [X]'s nurture has been unswerving. The decisions that they have made on [X]'s behalf have been sound and he is flourishing. It is to their credit that they have made this work despite their respective personal discomfiture at times.

   [90] There can be no doubt that the quality of care that each of the parents provides is excellent.

   [91] There are no complicating psychosocial factors in this family except for those associated with Ms Villar’s application for relocation.

   [92] Ms Villar has now been posted to Location C for three years and she wishes to move there with [X]. On her proposal, this would mean that [X] would only spend every second weekend and most of the school holidays with his father.

   [93] She asserts that she has not been able to remain in Brisbane any longer. She notes that Mr Meisner will also be subject to a further posting in January 2019.

   [94] Mr Meisner opposes any change to the current care arrangements. If Ms Villar does move to Location C, he proposes that [X] lives with him full-time so that he can remain in the same school and he will be with his younger siblings.

   [95]  He gave every indication during this assessment that he will choose to leave the Army if he is posted out of the Brisbane area rather than destabilize his family again by moving them. When asked whether he would be willing to make a formal undertaking in this regard, he didn't seem willing to go this far. For her part, however, Ms S was very definite about wanting to stay in Brisbane. The children are settled here; she loves her employment and seeks to continue with this.

   [96] Ms Villar says that she will not go without [X]. If the Court denies her application, she will leave the Army and look for alternative employment.

   [97]  It would appear that both parents have gained Army qualifications that equip them well as a starting basis for looking for suitable civilian employment. I am not in a position to comment on how feasible it will be for Ms Villar to secure this however. Mr Meisner’s likelihood of finding an appropriate position seems high since there is seemingly already one offer on the table, so to speak.

   [98]  [X] loves both parents. There are no discemable distinctions in his attachment to them, either in the history, in my observations or in his conversation.

   [99]  If the Court is minded to allow him to move to Location C, Mr Meisner will not be able to maintain the hands-on relationship with him that he has always had. [X] will miss his father enormously. He will undoubtedly receive ongoing excellent care from his mother who also has extended family support at Location C.

   [100] If the Court is minded to require him to stay in Brisbane, [X] will continue to have the week-about care of both parents from which he has always thrived. Ms Villar would need to forfeit her career to which she has been dedicated for over 12 years however.

1. Before discussing the cross-examination of the Family Consultant, the Court makes the following observations. Based on the Court’s own impressions of the parents through reading their evidence, and watching their cross-examination, the Court agrees with the Family Consultant in many ways. The parents have different personalities. With hindsight, they probably were not a good match. Despite the potentially formidable obstacles associated with working in the Australian Defence Force, they managed a successful equal time shared care arrangement for the majority of [X]’s life. The Court agrees with the Family Consultant’s assessment of the parents that, in effect, notwithstanding their different personality styles, so far as [X] is concerned they share similar values, expectations and routines for him. [X]’s Mother and Father’s commitment to him has been unswerving. [X] is flourishing in this shared care arrangement. Hitherto the parents have prioritised him, over their respective needs.

2. It is notable that in January 2018 the Father told the Family Consultant that he would choose to leave the Army if he were posted out of the Brisbane area, rather than destabilise his family again by moving them. In his evidence, the Father explained that his next posting would likely involve a move out of the Brisbane area. He did leave the Army (albeit technically being on long service leave at the moment) and is now working. Likewise, [X]’s Mother told the Family Consultant that she would not relocate without [X], and that if she were not successful in her application, she would leave the army and look for alternative employment. Whilst it is clear that this is not the Mother’s preferred option, her evidence nonetheless makes it clear that she will not go without [X].

3. There is nothing in the evidence which would suggest that the Family Consultant’s opinion at paragraph 98 is incorrect.

4. The Family Consultant was cross-examined. She was appraised of the changes in the proposals of the parents, and of the fact that the Father had given notice to leave the Army, and was in fact working elsewhere. The Family Consultant accepted that there were both advantages and disadvantages in the Mother’s proposal for [X]. It would enable the Mother to continue her career, in a context where extended family support would be available to her. The Family Consultant accepted that there were potential flow-on benefits to [X], including the fact that, at least in the short term, he would have a happier Mother who could continue to be involved in a very hands-on way in his care. The Family Consultant accepted, as indeed does the Court, that even if the Mother’s application were granted she would not move [X] until the conclusion of his Term 4 school year.

5. The Family Consultant was effusive in her praise of the Mother, describing her as “a great Mum” and pointing out that she “…could not see any issues with her parenting at all.” She accepted that the Mother was likely to support [X]’s relationship with the Father, because it is a relationship which the Mother values. The Family Consultant stressed, however, that she did not see that either of the parents would diminish the other’s relationship, in any circumstances. She described the parents as being “…different people…but with similar values…”

6. The Family Consultant was of the view that even if relocation was permitted, [X] would continue to have a close and meaningful relationship with his Father, though the extent of his Father’s ability to be involved in his life would be influenced by having less time.

7. It was put to the Family Consultant, who readily accepted, that if relocation were not permitted the Mother would forfeit her career. The Family Consultant was asked about whether it was likely that the Mother would experience grief and disappointment. The Family Consultant explained that that was probably the case, but she could not comment on the extent of this, or the impacts on the Mother. She agreed that leaving the Army, for the Mother, would lead to a sense of grief that was far greater than a departure from any other normal job. But when the Family Consultant was asked her opinion about the potential flow on effect on [X] of the Mother’s grief and disappointment, the Family Consultant was quite firm. She described this as a “hypothetical”. She referred to the Mother’s strong personality, doubting that any grief or disappointment would break her as a person. The Family Consultant acknowledged that it could take 12 months for her to deal with grief issues, but she was so impressed by the Mother’s degree of self-awareness, that she was confident that the Mother would be conscious of protecting [X] from her own feelings. Nonetheless, the Family Consultant acknowledged, [X] was likely to sense her grief, possibly indeed experience some of the same, without necessarily understanding.

8. The Family Consultant acknowledged the potential benefits to [X] of relocation that might include, for example, less time in before and after school care.

9. The Family Consultant was firmly of the view that if relocation were not permitted, it would not affect the Mother’s parenting capacity, indeed “…she will be an excellent parent wherever she is.”

10. In cross-examination by Counsel for the Father, the Family Consultant acknowledged that there were tensions in the relationship at times, but emphasised what she described as both parent’s commitment to nurture [X], resulting in a quality of care that was consistently provided in his life.

11. She was asked about [X]’s relationships with his step-sibling, [C] (nearly 5 years old) and [D] (1 year old). The Family Consultant explained that she had expressly considered this, but she did not see it as an issue on which a decision should be made. She acknowledged that it would be a loss for [X], but it was more important to prioritise parent/child relationships, rather than sibling development.

12. Counsel took the Family Consultant to her description of the week about shared care arrangement at paragraph 100 of her Report, in which she said [X] “has always thrived.” She was asked whether, in her opinion, [X] would continue to thrive if the Mother’s proposal were accepted. Her view was that [X] would continue to thrive whatever the Court does, though it will be a matter of degree. She thought that he had good adaptive skills due to the quality of parental care he had received.

13. The Family Consultant was taken to the orders sought by the Mother that covered future deployments, and thus future relocations. The Family Consultant accepted that this created uncertainty for [X]. By contrast, the equal shared time arrangement provided certainty for [X], not just in terms of his relationship with his parents, but the other significant people in his life, including his siblings.

14. The Family Consultant accepted that any plan that involved [X] spending two out of three weekends with the parent with whom he is not living meant that [X] would bear the brunt of the travel.

15. The Family Consultant was asked about paragraph 80 to 81 of her Report, in which [X] expressed some views. She thought that what [X] was saying was that he wanted to see both of his parents more and that he, in effect, loves and adores each of them.

16. The Family Consultant’s evidence was obviously very balanced. It is important evidence, which the Court accepts.

Discussion

1. The Court must consider the competing proposals of both parents, on their merits. The existing parenting arrangement for [X] is but one consideration. In this case, of course, the existing parenting arrangement is one of the competing proposals and even the Mother has conceded that, in substance, if relocation is not allowed it should remain.

2. This is a case where both parents seek an order for equal shared parental responsibility. This is entirely appropriate on the evidence. This, of course, triggers the requirement to consider whether such an order is in the best interests of [X], and whether it is reasonably practicable.

3. It is appropriate, therefore, to set out the Court’s finding about the primary and additional considerations set out in s.60CC, discussed, where relevant, by reference to the evidence.

4. The Court finds that [X] has a meaningful relationship with both his parents and that whether relocation is permitted, or not, this meaningful relationship will continue. There is nothing in the evidence of the parents, their witnesses, or the Family Consultant, which suggested to the Court that the quality relationship that exists between [X] and his parents would be affected by a quantitative reduction in time with them, as proposed by the orders. The Court accepts the Family Consultant’s evidence that [X] will thrive, whatever the Court does. Whilst she recognised that it was a matter of degree, she was confident he would adapt. The Court agrees. Even on the Mother’s proposal, [X] would continue to have a meaningful relationship with his Father.

5. There is no harm, physical or psychological, from which [X] needs to be protected.

6. [X] has expressed a view to the Family Consultant, the effect of which is that he wants to spend more time with both of his parents. The Court does not accept any evidence led by the parents, or in their case, about views expressed to them. That evidence is inherently unreliable because of the partisan nature of the party’s evidence, but also because of the emotional bind that the expression of any such view would have placed [X] in. The real issue for the Court in this case is what weight should be given to [X]’s views, given his age. The Family Consultant expresses no opinion about this. Both parents referred to [X] in glowing terms, but neither gives evidence that assists the Court to determine the level of his maturity and level of understanding. The Court’s impression of paragraph 78 to 85 of the Family Report is that whilst [X] is a quietly spoken boy with a soft, gentle manner, he seemed able to articulate, indeed quite clearly, albeit in simplistic terms, a yearning to spend more time with both parents. This is a view which the Court will take into account as a factor, but not a conclusive factor.

7. The evidence indicates that [X] has an excellent, close relationship with both his parents who he loves, seemingly without distinction (from the Family Consultant’s observation). The evidence suggests he has a close relationship with his siblings as well. The Court finds that even if relocation were permitted, the Mother’s proposal for [X] to spend time with his Father, and the Father’s family, would ensure that he continues to have this excellent relationship with them.

8. To the extent that the Mother’s case involved the assertion that the Father would be unable to promote [X]’s relationship with her, the Court does not accept this. This part of the Mother’s case, reflected for example in her case outline document, was probably framed in response to the Father’s (now abandoned) proposal for [X] to live with him if the Mother chose to relocate notwithstanding. The fact is, however, that there was no evidence before the Court, which supports the Mother’s contention. Indeed, the history of this matter is quite the opposite. This military family has sustained an equal shared care arrangement notwithstanding the rigours, and pressures, of past relocations, interstate and overseas deployments, and the general uncertainty of military life. If there is no evidence of any diminution in the quality of [X]’s relationships with either of his parents, this is strongly counter-indicative of any suggestion that either parent is unable, or unwilling, to facilitate and encourage [X]’s relationship with the other. One must not confuse communication problems, and lack of trust, with an inability, or unwillingness, to support ongoing relationships.

9. There is no issue about the extent to which each of the Child’s parents has fulfilled, or failed to fulfil their obligation to maintain [X].

10. The Court must consider the likely effect of any changes in [X]’s circumstances, including the likely effect on him of separation from, in this case, his Father, and any other child or person with whom he has been living. It is through the lens of this additional consideration that the differences between the proposals are highlighted. On the Mother’s proposal, there is considerable change for [X]. Some of this change is positive, and some of it is negative. The Family Consultant was able to identify, and accept both in cross-examination. The totality of her evidence suggested that [X] will, on balance, cope. Indeed, to use her words, [X] will “thrive whatever the Court does.” But she did go on to say that it was still a question of degree, seeming to suggest that he could thrive more, or less, depending on the circumstances. She was confident, nonetheless, that he will adapt. The Court interprets the Family Consultant’s evidence as being that any psychological effects of physical change will not, in the end result, have an adverse impact on the important relationships that [X] already has.

11. When the Mother’s proposal is explored through [X]’s eyes, and through his likely experiences, what is it likely to be like for him? There will be a significant physical change for [X]. For example, he will not see his Father, and his Father’s family every second week, particularly during the school week. During the school term, his interaction with them will be limited to weekends. Instead of his Father, and/or his Father’s partner, Skye, taking him to and from school and extracurricular or sporting activities, he will only have these interactions with his Father and Skye, at best, on Friday afternoons and Monday mornings. It will be very difficult for his Father to be present at (sport omitted) training on Thursday night, and it might even be difficult to attend (sport omitted) games every weekend. From [X]’s perspective, this is likely to be a big change.

12. The unchallenged evidence of the Father is that [X], [C] and [D] have a loving relationship and enjoy spending time together with [X]. Instead of this happening potentially every night in the alternate week, it will be limited to weekends, and school holidays.

13. The unchallenged evidence of the Father is that he enjoys playing (sport omitted) outside with [X], wrestling in the lounge room, playing superheroes or building Lego together. From [X]’s perspective, instead of being able to do this at any time each alternate week, he will be limited to weekends and school holidays.

14. From [X]’s perspective, the Mother’s proposal involves a change of school. He has been at his present school for several years. The Father’s unchallenged evidence is that he struggles at times at school, but is supported significantly by his teacher. [X] has a number of very good friends there. He regularly attends birthday parties and play dates with school friends and friends from rugby league. From [X]’s perspective, he is likely to miss these important relationships. Of course, he may, and perhaps even is highly likely, to form new relationships in the school and community that the Mother proposes. It is reasonable to infer, particularly from experience in parenting cases, that this will take time for [X]. The Family Consultant described him as “quietly spoken” and formed the impression that “he can slip quietly into the background without being noticed.” The Court infers that it should not be overly confident in assuming that [X] will easily adapt to the change, and loss, in the matters set out above.

15. Of course, the effect of change in [X]’s circumstances needs to be considered in the context of what he is moving to, particularly if there are benefits to him in this regard. The evidence in the Mother’s case suggests that she will have an extended family network available to both herself and [X], including familiar places and faces, and in a seemingly idyllic location. Even the school contemplated by the Mother seems to have been well considered, and did not attract a criticism by the Father. A move to Location C will certainly not be without benefits, and some of these changes may well mitigate any adverse impact of the change to his current life.

16. A significant issue, however, in this case is not just the change in [X]’s life as a result of a relocation with his Mother to Location C, but the strong possibility of further change in his life when his Mother’s deployment there concludes. Even though she is confident that she will still be deployed in the South East Queensland region, she cannot be certain about the future, and even that which she reasonably contemplates will inevitably involve further change for [X]. The Mother is reasonably confident that she can remain in Location C till January 2021. She seemed certain in cross-examination that her next posting would be in Australia, and communicated reasonable confidence that it would be in South East Queensland. Nonetheless, she accepted the possibility that [X] could be in a position where, if her orders are granted, he moves with her every 3 or 4 years. It is of interest to the Court that in cross-examination the Mother conceded that when she entered into the June 2016 Consent Orders she must have known the possibility of a posting to Location C.

17. Whilst the Family Consultant may have been optimistic about what the Court will describe as [X]’s resilience to change, the Court must be more cautious. Even if the Court accept that for the time being, [X] will thrive whatever order the Court makes, the Court cannot be as confident when the high prospect of further relocation is factored in.

18. The Court must consider the practical difficulty and expense of [X] spending time and communicating with a parent, and whether that difficulty or expense will substantially affect his relationship to maintain personal relations, and direct contact with both parents on a regular basis.

19. On the Mother’s proposal, there is no evidence to suggest that issues of practical difficulty and expense arise, for the purposes of this consideration. The amount of travel that is involved for the purposes of [X] spending time with his Father, on the Mother’s proposal, seems manageable, having regard to the frequency and duration of the visits. It imposes the primary burden of travel on [X], but again there is no evidence to suggest that it is an unreasonable, or unacceptable burden on him.

20. On the Father’s proposal, the existing arrangement would remain in place. In this regard, the Mother contends that this places some undue practical difficulty and expense on her. At one level, this is correct. The evidence suggests that during the week when [X] is living with his Mother, and she is having to work at Location C, she is involved in long, and expensive commutes, and [X] is required to be involved in long before and after school care. The Court accepts that this has probably resulted in the Mother not being able to attend to tutoring [X] as much as she has in the past. Her contention, however, that his school results have deteriorated because of this, is not borne out by the evidence.

21. It must be remembered, however, that this consideration looks at issue of practical difficulty and expense, which “will substantially affect the Child’s right to maintain personal relations, and direct contact” with the Mother. The Mother’s evidence does not go that far. She does not say that her relationship with [X] has deteriorated since the beginning of this year, when she was forced up to take her deployment to Location C. The Court could not discern any aspect of her case which suggested that, in a future sense, her relationship with [X] might be adversely affected because of the issues of practical difficulty and expense to which she alludes.

22. There is an overlap, the Court believes, between considerations of practical difficulty and expense, and consideration of reasonable practicality for the purposes of s.65DAA. This matter will be considered further, in that context.

23. There are no issues of parental capacity to provide for [X]’s needs, that arise in this case.

1. [X] was born and raised in a military family. As foreshadowed elsewhere in these Reasons, this lifestyle has presented challenges to his parents which they have admirably navigated, in a child-focused manner. The Father has left the ADF, and thus left the challenges associated with that lifestyle. The Court accepts that the military lifestyle is very important to the Mother, it seems to give her meaning, and perhaps even is part of her identity.

2. Even the Mother, however, has clearly signalled to the Court a willingness to leave that lifestyle, because her son is her main priority. That in itself is admirable. Whether she should be required to do so, of course, is one of the issues in this case. In cross-examination, it is clear that whilst the Mother was aware of the possibility of, in effect, transfer to the Army Reserve, she had not really considered this as an option. Joining the Army Reserve would, she explained, involve a discharge from the regular Army, probably offered a more limited range of positions for her, and would be part-time.

3. The Mother explained, and the Court accepts, that from a financial perspective, a part-time position in the Army Reserve would not necessarily meet the Mother’s reasonable needs. Nonetheless, the point of this cross-examination was to demonstrate that the Mother’s emotional connection to the ADF could be met, at least in part, through joining the Reserve.

4. The Court finds that there are no issues of parental attitudes, and to the responsibilities of parenthood, that arise on the facts of this case.

5. The Court finds that there is no family violence that is relevant to this case.

6. The Court must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to [X]. The inevitability of change in [X]’s circumstances as a result of the Mother’s future deployment was, indeed, recognised in the orders that the Mother proposed that she be permitted to relocate within South-East Queensland, should she receive a further posting, to avoid further proceedings.

7. The order proposed by the Mother is problematic, from this Court’s perspective. Firstly, it probably does not have the effect of precluding further proceedings in relation to [X].  How could it, in circumstances when the practical implication of [X] spending time with his Father remain completely unknown, because the Mother doesn’t know where she will be deployed, or what indeed her role will be. In any event, the Mother could not rule out a deployment outside of South-East Queensland, in which case, the possibility of litigation is a real one. But what about [X]’s perspective? The blurring between adult perspectives, and child perspectives, becomes obvious at this point. The Mother seeks an order framed in generous terms, with little consideration as to what [X]’s views might be at the time of future relocation.

8. The Father’s submission was, in simple terms, that the Mother’s proposal carries with it the inherent risk of further proceeding, for as long as she continues to be a member of the ADF. Future redeployment was almost inevitable, even on the Mother’s case.

9. As the parents have agreed, in effect, to equal shared parental responsibility, the Court must consider whether [X] spending equal time with each of his parents would be in his best interests. The analysis of the considerations referred to above lead the Court to conclude that, whilst this is a finely balanced case, an order for equal time is in [X]’s best interests. It is probably what he wants, at least in the sense that he doesn’t want to spend less time with either of his parents. It is also the proposal that will bring about the least change in his life, particularly in terms of the important relationships he has with both parents. It is also the order that is least likely, in this Court’s view, to lead to further proceedings. It is also, the Court notes, what both parents agreed to 2 years ago, and reflects the lived experience for [X] for a major part of his life.

10. The Court must also consider whether [X] spending equal time with each of his parents is reasonably practicable.

11. An important part of the Mother’s case is that equal time was not reasonably practicable, in all the circumstances of the case, particularly when the reality of her situation is taken into account. If the Mother is not permitted to relocate, she submits, she will need to remain in Brisbane, and will be forced to leave the ADF and find alternative employment. This, she contends, will be difficult, as she has no formal qualifications or other employment experience which would assist her. She faces unemployment, as well as loss of housing, health and other military benefits. This will result, she contends, in an inability for her to maintain both hers, and [X]’s standard of living. She is concerned about not being afforded the flexible work arrangements that she has in the ADF. Thus, she says that an order for equal time is not reasonably practicable and would have adverse impacts on [X], and certainly herself.

12. The Court does not accept that the Mother’s contentions are as clear cut as she asserts in her case. For example, she acknowledged in cross-examination that she had accrued 3 months’ worth of long service leave, which would provide a transition from the ADF, thus enhancing the reasonable practicality of an equal time arrangement, even if she did have to leave the ADF. Further, in cross-examination, the Mother acknowledged that she was aware that the ADF provided transition support if she were to discharge from the ADF, but had nonetheless not specifically approached the transition unit to find out what level of assistance could be offered to her, after 15 years’ service in the ADF.

13. As mentioned earlier in these Reasons, the Mother acknowledged in cross-examination that she had not explored the option of employment with the Reserve, in Brisbane. She had not explored the possibility of a position within the ADF in Brisbane. The Mother’s future employment prospect were canvassed in evidence. She agreed that the ADF had trained her how to present to an audience effectively. She agreed that this was probably a transferrable skill in civilian life, but she did not have formal qualifications. She agreed that one option for her in the private workforce was in (occupation omitted), and that she had made only general inquiries about positions.  She explained in cross-examination that she had not sought jobs in the private sector based on her experience as an (occupation omitted), because of the long hours they work.

14. In closing submissions, Counsel for the Father submitted that equal time was reasonably practicable for the Mother, because she could probably get work in Brisbane, but had made no genuine efforts or inquiries in this regard. In relation to the Mother’s concern that even if she could get work outside of the ADF, it would be for a lesser salary, Counsel submitted that she had made no genuine inquiries in this regard, and thus her contention about the impracticality of equal time did not survive critical scrutiny. 

15. The Court finds there to be substance in these submissions.

16. It is important to record that the possibility of the Father relocating from Brisbane to somewhere closer to Location C was in fact explored in cross-examination. He explained that this was impracticable from his perspective. He had just started a new job, and purchased a new home, in the (omitted) suburbs of Brisbane. He had transitioned successfully out of the ADF. He had a partner, and two young children, whose circumstances he need to be considerate of. In short, he contended, and the Court accepts, that it was not reasonably practicable for him to relocate closer to where the Mother sought that [X] and she live.

17. The Court is not satisfied that from the Mother’s perspective, an order for equal time is not reasonably practicable.

18. The Court therefore finds that an order for equal time is both in [X]’s best interest, and is reasonably practicable. The Court accepts that a consequence of this finding is that the Mother will be denied her desire to live where she wants, and work where she wants. This is a decision not lightly made. This is not a decision where the Court has subordinated the Mother’s ambitions and wishes, to those of the Father. This is not a competition between parents, but a determination of what is in the best interests of their son, [X]. As Hayne J observed in U v U (2002) 211 CLR 238 (‘U v U’) at paragraph 176: “It is the interests of the Child which are paramount, not the interests of the needs of the parents, let alone the interests of one of them.”

19. This is not a case where the Father has selfishly asserted the superiority of his needs and interests, over that of the Mother, let alone that of his son. The focus has always been on [X]. When the practical implications of the Mother’s proposal are explored, both in the short and the long-term, the Court finds that his interests in stability and continued relationships with the important people and places and things around him, is in fact more important than his Mother’s right to decide where she lives, and where she works. The Mother’s rights in these regards are found by the Court to so adversely affect [X]’s best interests, that the Court should interfere with their exercise.

20. During submissions, Counsel for the Mother handed up a useful aide memoire which set out, from the Mother’s perspective, the advantages and disadvantages of the proposals of both parents. The Court found this a useful thinking tool. Thus, for example, Counsel contended that there were 10 identified advantages of the Mother’s proposal to relocate, and 3 identified disadvantages. Likewise, there were 4 advantages of the Father’s proposal to continue equal time, and 5 disadvantages for the same. If deciding this difficult case were merely a quantitative exercise, the decision would not have been as difficult as it has been. 

21. The Court’s task, however, is a qualitative one, as well as quantitative. All of the factors need to be considered, weighed in the balance, assessed by reference to the evidence, and then a discretionary decision needs to be made about what matters receive more weight. It is interesting to observe, for example, that even Counsel for the Mother conceded in his aide memoire that there would be a diminishment in the nature of the relationship between [X] and the Father, and similarly, the relationship between [X] and his siblings and Ms S, the Father’s partner. This certainly resonates with the Court’s own assessment in this regard, notwithstanding the Family Consultant’s optimistic appraisal that [X] would thrive in any environment. Counsel also recognised that a disadvantage of the Mother’s proposal was a change to [X]’s schooling arrangements, and potentially a conclusion of primary school years. This is also a major concern of the Court.

22. In weighing the advantages and disadvantages of both proposal, this Court has chosen to focus on [X], his perspective on these issues, and what his experience might be like. Whilst the impact of proposals on both parents is not an irrelevant consideration, it is not the paramount consideration. The paramount consideration remains [X]’s best interests. It is contrary to the legislative scheme found in Part VII of the Family Law Act 1975 (supra) to allow parents’ rights to gain ascendency over childrens’ rights. There is a risk of disguising what is, in reality, a dialogue about parental rights by referring to benefits that accrue to parents as a result of competing proposals.  Thus, for example, Counsel for the Mother in his aide memoire suggested that an advantage of the Mother’s proposal to relocate with [X] was that the Father maintained the benefit of working in his chosen field, and the Mother maintained the benefit of working in her chosen field. The risk, of course, is that this dialogue is in fact about parent’s rights. In U v U (above) at paragraph 82, the High Court referred to the need to be sensitive to the wishes and rights of parents to live and work wherever they desire. In Adamson (2014) FLC 93-622, at paragraph 66, and referring to that statement in U v U, the Full Court said:

    These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests, where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.

23. The Full Court’s decision is what it is, and it clearly binds this Court. One cannot help but wonder, however, whether the Full Court has inadvertently endorsed a more parental rights approach to decision-making about children.

24. In any event, whether we are talking about parental rights, or the benefits that accrue to parents, this Court is satisfied that from [X]’s perspective, his right to have a meaningful, sustainable, enduring, quality relationship with both his parents would be so adversely affected by his Mother’s proposal, that it cannot be in his interests to permit it.

25. But there are other concerns about the purported advantages as set out in the aide memoire. These have been adverted to earlier in these Reasons. The Mother’s case does not satisfy this Court that the benefits that she seeks to maintain would be lost, or are likely to be lost. She did not prove this part of her case.

Issues about parenting orders

1. At the Court’s request, it received joint correspondence from the parties’ lawyers dated 9 August 2018. The parents agreed to vary the existing Orders, irrespective of the outcome of the Mother’s Application. The Orders consented to by the parents discharged certain provisions of the existing Orders made 11 August 2016, and replaced those Orders with new agreed provisions dealing with communication, overseas travel, medical, specific issues, and family dispute resolution. The request was quite reasonably made that the Orders consented to should be incorporated in the Orders made by the Court, rather than in a separate document. The Court will accede to this.

2. However, a number of relatively minor issues remain in dispute, in respect of which the Court is asked to adjudicate. The Court finds very helpful the summary table contained in the joint letter of 9 August 2018, and will refer to the same in dealing with the discrete issues. Of course, this determination will be made in the knowledge that the Mother’s application for relocation is otherwise dismissed.

3. The Mother proposes, in her Order 8, a new order dealing with special occasions. There are, of course, existing orders covering special occasions found in Order 3 of the Consent Orders made 13 April 2016. Whilst the Father agreed to the Mother’s proposal if she were permitted to relocate [X] to Location C, he otherwise opposes any change to the existing arrangements. From the Court’s perspective, no evidence was led of difficulties with the implementation of the existing order, such that the Court would consider varying the same.

4. The Mother proposed in her Order 9 an order the effect of which would be to clarify that when [X] spends time with a parent on special occasions, this would operate in a way as to cause to be suspended on special occasions the existing spends time with orders. The Court does not believe this is necessary. The opening words of existing order 3 state: “That regardless of the arrangement for the Child’s care set out in orders 2 and 14…”

5. The Mother proposes a new changeover provision at her Orders 10 and 11. Changeover is dealt with in Orders 6 and 7 of the existing Orders. The difficulty with accepting the Mother’s proposal is that the Court does not know where, precisely, the Mother will live. Her evidence to the Court is that if relocation of [X] is not permitted, she will leave the ADF, and return to Brisbane. It is not possible to discern, at this stage, why the existing Orders would not be adequate.

6. The Mother seeks communication orders in her proposed orders 13-15, but these appear substantively identical to the existing Orders.

7. The Mother seeks order 21, relating to travel advisory warnings. This is partially agreed to in order 9 of the orders consented to. The difference in the proposals seems to be that the Mother does not want travel to occur if there is a Level 2 warning in place, i.e. exercise a high degree of caution. The Father’s proposal in this regard is that Level 2: exercise a high degree of caution be included in the orders, with the exclusion of Country B and Country C. The Mother’s evidence about this is vague. The Court finds no evidence from the Father about this, other than the briefest of submissions. It is not possible to judicially determine whether Country B and Country C should be excluded. As the Father seems to be in agreement with the general proposition of not travelling when a Level 2 travel advisory was in place, that order will be made. The Court trusts that common sense will prevail. The Court’s experience is that Level 2 travel advisories are frequently in place for travel destinations that are routinely visited by Australian families.

8. The Mother’s proposed order 25 was a non-denigration order, which is substantively identical to the existing Orders.

9. Order 27 proposed by the Mother is to the effect that [X] not be encouraged or allowed to call anyone other than the Mother and Father ‘Mum’ or ‘Dad’, or any variation of these terms. The Mother deals with this issue in her evidence. There seems to be a reasonable basis for her concerns. Her evidence was not challenged in cross-examination. The Court accepts the importance of the inclusion of the prohibition on [X] being allowed to call anyone other than his Mother and Father, ‘Mum’ or ‘Dad’. Order 27 proposed by the Mother will be made.

10. Orders 28 and 29 proposed by the Mother are substantially identical to existing orders, and thus do not need to be made.

11. Order 30 proposed by the Mother was to the effect that if the Father was required to travel away for work, or otherwise away from [X] for more than three nights when in his care, the Father would provide the Mother the first opportunity to care for [X]. Whilst the Mother’s concern about this was understandable, particularly when the Father was a member of the ADF, it is clear from the evidence that the Father (indeed the Mother also) spent frequent, and sometimes extended, periods of time away from home. But that is no longer the case now. Moreover, the biggest problem the Court has about making the order the Mother proposes is the lack of certainty about her own arrangement, residential and otherwise. It is not possible to make the order that she seeks.

12. The Mother sought orders 32 and 33 covering future ADF postings. The significance of these orders was discussed earlier in these Reasons. Given that relocation has not been allowed, these orders cannot be made.

13. The Mother’s Application should be dismissed. The orders varying the existing orders be made by consent. Further orders varying the existing orders be made in terms of the above.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:     5 October 2018

Schedule One

Annexure A

Family Law Act 1975

In The Federal Circuit Court
of Australia

At Brisbane

File No. BRC10148/2015

Between:  MS VILLAR

(Applicant)

and:  MR MEISNER

(Respondent)

Minute of final orders sought on behalf of the mother

Orders dated 1 July 2016

1. That the Orders dated 1 July 2016 be discharged.

Parental responsibility

1. That the mother, Ms Villar, and the father, Mr Meisner, have equal shared parental responsibility for the long term care, welfare and development of the child, [X], born 2010 (the child).

Living arrangements

1. That the child live with the mother and, for this purpose, the child be permitted to relocate to the Location C region.

1. That the child spend time with the father at all times as may be agreed upon between the parties and failing agreement:

   (a)During school terms, for the first and second weekends in every three weekly block, from after school Friday until 7.00pm Sunday, with such weekly blocks to continue after each school holiday period as though they had not been interrupted;

   (b)During the entire June/July and the entire September/October gazetted school holidays;

   (c)During one half of the Easter and Christmas gazetted school holidays such that the child spends time with Father for the first half in even numbered years and in each alternate year thereafter and the second half in odd numbered years and in each alternate year thereafter.

2. That the child live with the mother at all other times.

1. That, for the purpose of paragraphs 4(b) and 4(c):

   (a)School holidays are taken to commence at 9.00am on the first Monday following the child completing school for the term and conclude at 9.00am (or the start of school) on the first day the child recommences school;

   (b)During Easter and Christmas gazetted school holidays, changeover will occur at 9.00am on the day which is the midpoint between the first and the last day of holidays;

   (c)In the event there are an odd number of nights in a school holiday period, the child will remain with the parent who has the first half of the holidays for the extra night and changeover will occur at 9.00am on the following day.

2. If either parent intends to travel away with the child overnight, that parent must provide the other parent with 24 hours’ notice of the proposed travel arrangements. 

Special occasions

1. That the child spend time with each parent during special occasions as follows:

(a)On the child’s birthday, in even numbered years the child spend time with the mother from 3.00pm on 24 April until 1.00pm on (date omitted) and with the father from 1.00pm until 7.00pm on (date omitted) and, in odd numbered years with the father from 3.00pm on (date omitted) until 1.00pm on (date omitted) and with the mother from 1.00pm until 7.00pm on (date omitted). 

(b)On the mother’s birthday, the child spend time with the mother from 7.00pm the night prior to her birthday until 9.00am the day following her birthday.

(c)On the father’s birthday, and the birthdays for each of the child’s siblings:

(1)If the birthday falls on a non-school day (including a Sunday), the child spend time with the father from 7.00pm the night prior to the birthday until 9.00am or before school the day following the birthday, with the father to return the child directly to school if such time concludes on a school day;

(2)If the birthday falls on a school day, the child spend time with the father on the weekend following the birthday if the child is not otherwise in the care of the father that weekend, from 7.00pm on the Friday until 9.00am on Sunday. If the weekend following the birthday is a weekend during which the child is with the father in any event, the child is to spend time with the father from after school Friday until 7.00pm Sunday.

(d)On Mother’s Day, from 7.00pm the Saturday night before until 7.00pm on Mother’s Day;

(e)On Father’s Day, from 7.00pm the Saturday night before until 7.00pm on Father’s Day;

(f)On the Christmas holiday period, in even numbered years, with the father from 9.00am on Christmas Eve until 9.00am on Boxing Day and, in odd numbered years, with the mother from 9.00am on Christmas Eve until 9.00am on Boxing Day.

(g)On the Easter holiday period, in even numbered years, with the father from 9.00am on Good Friday until 7.00pm on Easter Saturday and with the mother from 7.00pm on Easter Saturday until 7.00pm on Easter Monday and, in odd numbered years with the mother from 9.00am on Good Friday until 7.00pm on Easter Saturday and with the father from 7.00pm on Easter Saturday until 7.00pm on Easter Monday.

1. That the child’s time with each parent in accordance with paragraph 0 be suspended for the purpose of special occasions.

Changeover

10.  That unless otherwise provided in this Order, providing each party’s residence is no further than 90 kilometres apart, for the purpose of changeover the mother or a member of the mother’s family will deliver the child to the father’s home at the beginning of his time with the father and the father or a member of the father’s family will return the child to the mother’s home at the conclusion of his time.

11.  That unless otherwise agreed if the father lives in excess of 90 kilometres from the mother’s home, the parties shall each effect changeover at a mid-way point between their respective residences, provided that if the father’s residence is Location G (or no further north than his Location G residence) in the State of Queensland then paragraph 10 applies. *

Communication

12.  That the child will communicate with the parent with whom they are not spending time with by telephone, mobile, Skype or similar means at all times as may be agreed and failing agreement, each Tuesday, Thursday and Saturday between 6.00pm to 6.30pm, with the parent with whom the child is spending time to facilitate such communication.

13.  That the parent who has the care of the child facilitate any such request by the child to communicate with the other parent.

14.  That for the purpose of facilitating communication, the parent whose care the child is in shall remove the child from any distractions (such as television).

15.  That if either parent changes their contact numbers, home address or email address, they are to notify the other party within 24 hours of such change.

Overseas travel

16. That pursuant to section 65Y of the Family Law Act 1975 (Cth) both parents be at liberty to travel overseas with the child during such periods as the child is in their care provided:

(a)The travelling parent provides at least 28 days written notice to the other parent of their intention to travel overseas with the child, including:

(1)the approximate departure and return dates;

(2)the name of the persons who will be accompanying the child;

(3)the country or countries the child will be travelling to.

(b)At least 14 days prior to the departure date, the travelling parent must provide to the non-travelling parent:

(1)a copy of the child’s itinerary which must include return airfare ticketing;

(2)the dates on which the child will arrive and depart each country;

(3)a landline and mobile telephone number and address at which the child can be contacted in each country.

17.  That the child’s passport is to be held by the mother.

18.  That the parties do all acts and take all steps necessary to ensure the child’s passport remains valid at all times with any such renewal costs to be shared equally between the parties.

19.  That in the event the father is to travel with the child, the mother shall make the child’s passport available to the father at least 7 days prior to the departure date and the father shall return the child’s passport to the mother within 48 hours of the child returning to Australia.

20.  That each parent will provide any details requested in relation to the child’s passport, such as passport number or expiry date, that they have in their possession to the other parent within 7 days of such a request.

21.  That the child will only travel providing their travel is consistent with any recommendations or travel advisory warnings that may issue by the Department of Foreign Affairs and Trade such that the child will not travel if any of the following warnings are in place:

(a)Level 2: Exercise a high degree of caution;

(b)Level 3: Reconsider your need to travel; or

(c)Level 4: Do not travel.

Medical

22.  That in the event that the child is injured or otherwise requires medical or hospital treatment or is otherwise absent from school due to illness, the parent then caring for the child will immediately inform the other parent via phone, e-mail or SMS message.

23.  That if the child is required to take prescription medication, the parent who purchases it will provide it to the other parent, together with any script and instructions for administration, at changeover, and such medication and documents are to be returned to the first parent with the child at the conclusion of time.

Specific issues

24.  That each party hereby irrevocably authorises any person or institution including but not limited to any doctor, carer, teacher, hospital, childcare institution, preschool, school and any social, sporting or recreational organisation, to release all and any information (verbal or in writing) requested by either parent in relation to the child and, for this purpose, both parents shall keep the other informed of the details of any provider for the child.

25.  That neither parent shall denigrate the other parent or the other parent’s partner to the child or within the child’s presence or hearing and that the parents will ensure that no other person denigrates the other parent or the other parent’s partner to the child or within the child’s presence or hearing.

26.  That the parents shall communicate directly with each other regarding issues concerning the child, and will not discuss any issues in dispute between the parents with the child or allow any other person to do so.

27.  That the child not be encouraged or allowed to call anyone other than the mother and the father “Mum” or “Dad” or any variation of these terms.

28.  That only the mother and father may attend the child’s school for parent/teacher interviews without interference from any other party.

29.  That each parent foster and encourage the relationship between the child and the other parent.

30.  That in the event the father is required to travel away for work, or is otherwise away from the child for more than 3 nights during which time the child is under his care pursuant to these Orders, the father provide the mother with the first opportunity to care for the child.

31.  That neither parent shall use physical discipline on the child, nor allow any person to use physical discipline on the child. *

Future Australian Defence Force postings of the mother

32.  That the child be permitted to relocate to wherever the Mother is posted by the Australian Defence Force, from time to time, providing:

(a)Such postings are to the South East Queensland region including Location C, Brisbane, Location E, Location F or Location G; and

(b)The Mother provide the Father with notice of all postings, including commencement date and location, within 48 hours of the mother receiving formal notice of the posting.

(c)That if the Mother moves residences due to a posting from the Australian Defence Force, such that she is posted in excess of 90 kilometres from the Father’s home in Brisbane, the Mother and Father shall effect changeover at a mid-way point between their respective residences.

33.  That if the Mother is posted to the Brisbane region, the Mother and the Father will participate in family dispute resolution to consider whether the child’s best interests at the time of the posting would be served by resuming an arrangement whereby he lives between the Mother and the Father on a week about basis.

Family dispute resolution

34.  That if the parents are unable to agree about a decision to be made in the exercise of their equal shared parental responsibility or if there is a dispute about the child or about the interpretation, implementation or enforcement of these Orders, then the parents shall submit to the following dispute resolution process:

(a)The parent with the complaint (complainant) will provide written details of the nature and extent of their complaint to the other parent (recipient) with a proposal for resolution of the complaint;

(b)The recipient will provide a written response to the complaint within 14 days of receipt of the complaint with which the recipient disagrees, and if there is a disagreement, a counterproposal for a resolution of the complaint;

(c)The complainant within 14 days of the receipt of the recipient’s response will provide written confirmation of whether the complainant considers that there is still a dispute;

(d)If there is still a dispute after (c), the complainant will contact a Family Relationship Centre or Family Dispute Resolution Centre and the parents will participate in mediation about the dispute.

* The italics text in Orders 11 and 31 represent amendments made by the Applicant Mother via a document handed up in Court during the Final Hearing.