Voss and Horner

FEDERAL CIRCUIT COURT OF AUSTRALIA

VOSS & HORNER

[2015] FCCA 340

Catchwords:
FAMILY LAW – Parenting – international relocation for three year posting.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61C, 61D, 61DA

U v U (2002) FLC 93-112; (2002) 211 CLR 238
Sayer & Radcliffe & Anor (2012) 48 FamLR 298

Applicant:

MS VOSS

Respondent:

MR HORNER

File Number:

CAC 1785 of 2012

Judgment of:

Judge Hughes

Hearing dates:

29 & 30 January 2015

Date of Last Submission:

30 January 2015

Delivered at:

Canberra

Delivered on:

18 February 2015

REPRESENTATION

Counsel for the Applicant:

Ms Tonkin

Solicitors for the Applicant:

Direct brief to counsel by the applicant

Counsel for the Respondent:

Jeanine Lloyd

Solicitors for the Respondent:

Jeanine Lloyd & Associates

ORDERS

The applicant mother is permitted to relocate to the Philippines for a three year period from mid-2015 until mid-2018 with the children [Z] and [Y], both born [omitted] 2004.
The precise dates for relocation to and from the Philippines shall accommodate the dates for the commencement and end of the school year in Manila.
During the period of relocation the children shall spend time with their father in Australia as follows:
(a)for the whole of the Term 1 (Christmas) school break in 2015;
(b)for the whole of the Term 2 (Easter) school break in 2016;
(c)for half of the long summer school break (June to August) in 2016;
(d)for half of the long summer school break (June to August) in 2017;
(e)for the whole of the Term 1 (Christmas) school break in 2017;
(f)for the whole of the Term 2 (Easter) school break in 2018; and
(g)such additional or alternative times as agreed between the parties.
The children shall spend additional time with their father in the Philippines during school terms, at times to be agreed between the parties.
The parties shall each take all reasonable steps to facilitate the children having regular telephone and Skype communication with their father.
The parties shall each take all reasonable steps to implement the wishes of the child [X], born [omitted] 1999, in relation to him relocating with his mother and siblings or remaining in Australia with his father.
The parties shall each take all reasonable steps to facilitate all three children spending regular time together and communicating on a regular basis by telephone and Skype.
Unless otherwise agreed the parents shall each pay one half of the costs of the children’s travel between Australia and the Philippines which is not paid by the Australian Government.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1785 of 2012

MS VOSS

Applicant

And

MR HORNER

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings in relation to three children. The applicant mother is a Commonwealth Government employee and has successfully applied for a posting to Manila for three years commencing in July 2015. She would like to take the children. The parties have agreed their 15-year-old son should decide for himself whether or not he will accompany his mother. He was initially keen to go but has since decided to remain in Australia with his father. The parties are unable to agree about whether or not their 10-year-old twins should accompany the mother.

Background

The parties began living together in May 1995. They were married on [omitted] 1998 and separated on 30 September 2012. They have three children: [X], born on [omitted] 1999 and twins, [Y] and [Z], who were born on [omitted] 2004.
The mother is aged 44. She has been the primary caregiver for the children and, other than a short period after [X] was born when she returned to full-time work, she has worked part-time in order to be available for the children and manage the household. Before the twins were born in 2004 the mother was working approximately .8 of a full-time load which meant she was working more or less school hours. When the twins were born she took two and a half years maternity leave, then returned to work half-time for six months before gradually increasing her hours back to her current level of .8 of a full-time load.
The father is aged 62. He resigned from the workforce in early 2013, six months after separation. He does some voluntary work but has been much more available and involved with the children since his resignation. He takes the children to school on most days and collects them from school on the days they are due to spend time with him.
There is some tension in the relationship between the parties but, to their credit, they have largely shielded their children from it. After separation they were able to negotiate good arrangements for the children which initially involved the children living primarily with their mother and spending alternate weekends with their father. Over time those arrangements were adapted to suit the needs of the individual children and their father’s increased availability.
Immediately post-separation they attended upon a clinical psychologist, Ms L, to assist with working out the children’s arrangements. They have implemented the arrangements and changes to them without any need for court orders.
In July 2014 [X] moved to live with his father. The mother supported the move because it accorded with [X]’s wishes and because there were some difficulties in her relationship with [X] arising, she said, from his attitude and behaviour towards her. She said their relationship has improved since the move. [X] spends every second weekend and one night in each week with his mother. [Z] lives with her mother and spends every second weekend with her father from Friday to Sunday plus one night during the week. [Y] lives with his mother and spends every second weekend with his father from Friday to Monday plus one night during the week.
Both parties are interested and involved in the children’s schooling and extracurricular activities.

The proposed relocation

Since 2000 the mother has worked for [Commonwealth Department omitted]. In December 2011 she applied for an overseas posting with the full support of the father. The application process required the mother to rank in order of preference the particular postings she sought. The order of preference nominated by her was as follows:
1.Beirut
2.Tehran
3.Santiago
4.Belgrade
5.Kuala Lumpur
6.Colombo
7.New Delhi or Suva
8.Dubai
9.Washington
10.Manila
The mother was unsuccessful in that round of postings.
In December 2013 the mother made another application for a posting, this time to Manila. By then the parties had separated. The mother sent the father the following email on 2 December 2013:
[Mr Horner], I just wanted you to know that I have put in for the 2015 posting round. I haven’t told the kids, and certainly don’t plan to unless I am successful but I did get an interview, so I’m on the right side of the shortlist so far. I’m happy to discuss further, but would suggest it might wait until the round is finalised, which is expected to be before Christmas, as there is a strong chance nothing will come of it.
The father responded on the same day with the following:
I certainly wouldn’t be as happy or supportive as I was with the “Beirut option”.
The following morning he sent another email which read as follows:
I was greatly understating my feelings when I responded last night. Three years without my kids? I hope I don’t need to take you through the emotions. But I think and hope you know that I cannot accept that.
So it’s probably best that you know my opposition before it goes further.
On 13 January 2014 the mother wrote to the father telling him she had been successful and was offered a posting from March 2015. She invited the father to talk about the implications in the following weeks and before the children were told anything about it. She said:
[Mr Horner],
I have been successful in the SM0 round and offered Manila from March 2015.
Can we talk about this sometime in the next few weeks? I do not want the kids to know at this stage.
The father responded:
We can talk but my position was made known prior to Christmas.
The parties did not talk about the issue. On 9 February 2014 the mother sent a long email to the father setting out her reasons for wanting to accept the posting. She outlined the benefits to the children and said:
… my primary motivation for going on a posting has been the experience it offers the children to actually live and immerse themselves in another country. I think that the fact this is an Asian country is something that will open their eyes and serve them well for the rest of their lives. That is what it is all about.
In her email the mother told the father she understood his anxiety about missing the children but made it clear there was no suggestion that the posting would represent three years of continuous separation from them. She urged him to consider the options available to maintain their relationship. She suggested that he keep the $10,000 a year he was contributing to the support of the children and use it instead to visit the children three times a year in addition to which the children could visit him once a year. She pointed out that those visits could be supplemented by communication through Skype or similar facilities. She also said she would be supportive of him coming to visit whenever he wanted, provided there was also the opportunity to have some holidays in the region.
The school year in Manila starts and ends in the middle of the calendar year. The mother offered that the children could stay in Australia with the father for the first five or six months of the posting until the commencement of the new school year in Manila and return early to Australia to commence the new school year in February of the final year of the posting.
In her email the mother outlined in general some of the options for education and further travel in the area. She invited the father to let her know if he was prepared to make the opportunity work and to enter into discussions about the details of the arrangements for the children if they went with her.
The mother also advised the father that she had told the children of the offer. She said the following about it:
When I told the kids of the offer, [X] was so excited and so extremely positive. He was surprised when I suggested you might not agree, and said of course you would, it’s a fantastic opportunity for us. [Y] was less keen, and when pushed, he said he was scared of flying. [Z] didn’t say anything. I have not discussed with them again, but they are asking me what is happening.
The mother urged the father not to place any pressure on [X]. She said:
With regards [X], he will be nearly 16 at the time, and should be able to make up his own mind – this is the approach that would be taken by the Family Court. He has already indicated his excitement at the prospect, and I would be greatly disappointed if he is made to feel guilty in any way about this.
The father said during his oral evidence that he spoke to the children about the proposed relocation in early February 2014 and told them of his distress about the prospect of them being away from him for three years. It appears the father’s statement was translated by the children as meaning they would not see him at all for three years. Each of them stated at various times that their father would be very sad about not seeing them for three years. This was plainly wrong given the obvious preparedness of the mother to ensure the children would see him at least four times each year at effectively no cost to the father. The father conceded that he did not correct the children’s misunderstanding. He denied that it was his intention to have maximum emotional impact on the children but clearly it did have an impact. The father was asked whether his intention in allowing the children to think they would not see him for three years was to satisfy his own emotional needs. He said “It may have been”.
Despite the mother’s invitation, the father did not discuss with her the range of options available to help make the move viable while maintaining the children’s close relationship with him. However, the parties did agree to go to mediation in April 2014. Prior to the mediation the mother sent an email to the father on 25 April 2014 in which she said:
Happy to go to relationships Australia. As per my earlier email, I have sought suggestions from you on how this can be made to work. I have proposed some rough ideas, and sought your input. I think it is up to you to consider what it would take for it to work for you. I only implore you to consider the children’s interests above yours.
[X] is convinced you would agree if I allowed you to move to Manila. I suspect that is not what you intend, but I would have no objection, and indeed no right to object if that was what you want to do. Obviously, you would need to arrange your own accommodation.
The father responded on the same day. The first paragraph of his email is as follows:
I can only reiterate that my responses on this matter are all about the kids’ interest and not mine. I repeat that it would be utterly irresponsible of me to relinquish my parenting responsibilities as you’ve suggested in your “rough ideas”. Your propositions reduce my role to that of the visitor, not a father, and this is not in their best interests.
Sometime towards the middle of 2014 the father told the mother that he was prepared to allow the children to move to Manila on the basis that he went too and also lived in the mother’s home. The mother said she was happy for him to move to Manila and to live very close by but not in her home. She provided information to him about other accommodation options available. However, the father was not prepared to move on that basis. The mother consulted solicitors about her options and instructed them to write to the father including a final offer before she commenced proceedings. Notwithstanding that, she wrote again to the father on 19 August 2014. I will set out her correspondence in full as, in my view, it is a good illustration of the mother’s attitude and preparedness to engage with the father’s issues in order to find a resolution:
[Mr Horner],
I understand from the mediation that you would agree to the children coming to Manila, if you are able to also come.
As I indicated during the session, as I had previously, I have absolutely no objections to you coming, but this will not be as my partner.
As I stated I have no objections to you living in the same apartment complex, or around the corner, and will facilitate access to the children. The Department have confirmed that there is no problem with this approach. I have also provided you with some information on rental properties in the same area of Manila as the [workplace] and where my accommodation will be, and on cost of living.
I assume, but have not confirmed, that the price of a three-bedroom apartment in the same block as mine (wherever that will be) is likely to be more than $400 week (about the amount I assume you are paying now), but there are plenty for about that amount. However, should this be the clincher, I am willing to pay the difference of rent, up to an amount of $400 per week above what you currently pay.
I have also indicated I am willing to discuss the time spent by the children in Manila versus the time spent here (e.g. 1-2 years there/ 2-1 years here) and any permutations that would work for you, providing they are suitable for the children (e.g. 6 months here, there, here, there would be a disaster).
If you are prepared to actually seriously consider this, then I also offer to fly you to Manila to check it out. There may be some contacts within the school community and within the expat community (for example I have been liaising with a Principle from the Nous group who is working over there) who could talk to you about life and opportunities there. You could either go yourself, or we could go altogether, with some conditions/thought on how that would work so it is not misconstrued by the children as a pathway to reconciliation. For example, [name omitted] is prepared to accompany us, or we can ask someone else to come along- maybe my mother, or someone of your choice.
If you are prepared to consider this and would like to discuss it, I am prepared to organise a mediator - or have you appoint one to assist in the discussion process. I don’t have anyone in mind, but I’m sure it would be easy to find someone.
Please let me know ASAP if you are willing to consider this option, and if so, if you would like to select a mediator.
[Ms Voss]
In my view this offer by the mother could not be more generous, conciliatory and open. She was clearly trying to make the move as palatable as possible to the father, including paying for him to travel to Manila in advance to see for himself the conditions in which the children would be living and by subsidising his rent in Manila if he chose to also relocate during her posting. The father’s response on 24 August 2014 recognised none of that. It was dismissive and belittled the mother’s legitimate efforts to find a reasonable compromise. The first paragraph reads as follows:
[Ms Voss]
What was said at the RA mediation session is now ancient history and has been overtaken by your lawyer’s ‘final offer’ delivered to me on 1 August. This, of course, was simply a reiteration of what you’ve been stating for some months. It seems that you just think that everyone will fall into line because you say so, notwithstanding you being aware from the outset that your proposed move was not welcomed by me, and in recent times, the children. It is unnecessary disruption and upset to everyone’s lives because you think it would be a good idea. So the option of me moving to Manila is no longer open.
In my view it was unfair for the father to characterise the mother’s pressing of the issue as evidence of an expectation by her that “everyone will fall into line” with her wishes. On the contrary, the father acted from the outset as if he held a veto in relation to the mother’s plan and intended to use it without even discussing the options.
For most of the time since the children were born the mother had worked part-time in order to be available to care for them and the father had worked full-time. His capacity to work full time was in no small part facilitated by the mother delaying her own career development. Had she not done so, the father’s work life may have been impacted by his childcare responsibilities. The mother said, and I accept, that she had long desired to obtain an overseas posting and this was the first time she had been given that opportunity.
The father accused the mother of being significantly motivated by financial gain in seeking the posting. The mother responded that her main motivation was the life experience that she and the children would have as a result of the posting but readily conceded that financial issues were also a significant factor in her consideration. Her current gross income is $86,000 per year. If she accepts the posting her gross income will increase to approximately $150,000 per year. In addition, she will rent out her home in Canberra and expects to receive approximately $20,000 per year in rental income. The family’s accommodation, the children’s schooling and some private travel will be paid for by the Department and the mother will be entitled to an additional nine days of annual leave. These were all tangible benefits cited by the mother as part of the attraction of the posting.
The mother said she believed her significantly higher income for a period of three years would provide a range of opportunities for the family which would not otherwise be available. They include making affordable a greater range of extracurricular activities in which the children have an interest and providing the means for international travel. Over the three-year period of the posting the mother estimated she would earn approximately $270,000 more than she would otherwise. She said that would enable her and the children to move closer to [T] School which the twins currently attend and which both parties anticipate they will attend up to the end of year 10. She said that such a move would enable the children to ride their bikes or catch a bus to school rather than being driven from their current home in [suburb omitted]. It would also enable the children to socialise more easily with other children who attend the school.

The mother was asked why she could not work full-time in Australia to improve her financial circumstances. She conceded that she could. She currently holds an Executive Level 1 position with a full-time annual income of $103,000, approximately $70,000 less than the total income she would receive if she were to accept the posting. To work full-time in Australia she would incur after-school care costs unless the parenting arrangements changed. She estimates those costs would be approximately $140 per week and she would also lose the $60 per week she currently receives by way of Family Tax Benefit Part A.
The mother said that she could apply for a promotion to Executive Level 2 in the Department but said that was unlikely in the next few years given the well-publicised statements by the Secretary of the Department about a planned significant reduction in the number of EL2 positions. She said that experience in an overseas posting would put her in a good position to apply for further postings in the future or for promotions within the Department in Australia.
The mother will, in fact, be employed at an APS 6 level in Manila, which is a lower level position than her current job but the income outlined earlier relates to the APS 6 position.
The mother is not required to demonstrate she has compelling reasons for the relocation but she has nonetheless provided persuasive reasons why the relocation would be of professional benefit to her and of financial benefit to the family in addition to the benefits she saw for the development of the children’s life experience.
In the absence of an agreement with the father, the mother commenced proceedings on 29 August 2014. On the first return date, 13 October 2014, the parties entered into interim consent orders for the preparation of an expert report by Ms L, a clinical psychologist. The matter was also listed for final hearing. It was heard over two days on 29 and 30 January 2015.

The mother’s proposals

The mother proposes to live in Manila with the two younger children for a three-year period commencing in July 2015. Because of the disagreement between the parties she was able to negotiate a delayed start date for the posting which was originally due to commence in March 2015.
Although the mother has commenced a new relationship, her partner will not be accompanying her if she relocates.
The mother received extensive briefing documents about the posting from the Department and provided a copy to the father. A copy was tendered in evidence. There are a range of accommodation options available for the mother and the children in Manila. The mother said she is entitled to a four-bedroom apartment, especially if [X] also relocates or spends time in Manila. She said her preference would be to live in a three-bedroom apartment with the twins sharing a bedroom (as they do in her home now) as the three-bedroom apartments are located only a five minute walk from the [omitted] where she will be working and the four-bedroom apartments are about a 20 minute drive from the [workplace].
The mother does not yet have a clear idea about the hours she will be required to work but said she anticipates she would always be home by 6pm. She is entitled to a range of domestic help and would employ a housekeeper or nanny whose primary job would be to supervise the children after school but who would also carry out some housekeeping tasks which would free her to spend time with the children in the evening. The mother gave details of a very extensive programme of extracurricular activities available at the school she proposes for the children and said she anticipates the children will engage in many of them. She said the children would be driven to any off-site activities by a driver engaged for the exclusive use by the family. The driver and all domestic staff would be fully vetted by the [workplace]. The mother said she is likely to employ the housekeeper and driver currently engaged by her predecessor in the job who gave glowing reports about each of them.
The mother said that her mother will accompany her and the children to Manila and stay with them for at least the first month to assist in settling the children into their routines. She said her mother is prepared to stay for longer if needed.
The mother was realistic about the risks to the children in relocating to Manila. The briefing document she supplied to the father has a summary which includes the following:
Environmental factors: Manila is a difficult environment which many officers find stressful. Much of the infrastructure is poor and badly maintained. It is a congested and polluted city. Officers with children, particularly those with respiratory problems, should be aware that pollution-related illnesses often occur and can restrict their ability to spend time outdoors. There is also a significant risk of exposure to hepatitis A and B, Dengue Fever and Tuberculosis.
Security: Officers can only live in approved high-rise residential apartment buildings or in secured houses located in one of three residential villages. Officers and their families live with a high level of security threat in Manila. Common threats in Manila include pick-pocketing and bag-snatching, confidence scams, burglary, car-jacking and gun crime. There is also an ongoing threat of terrorism in Manila. The [workplace] provides a number of measures to enhance the security of staff, their families and residences, but staff are expected to do their part by complying fully with the post security instructions.
Kidnapping is a major problem in the Philippines. Kidnap gangs largely target rich Filipinos of Chinese origin but expatriates have been kidnapped and held for ransom in Manila and regional areas. The kidnapping threat is particularly high in parts of the southern Philippines, where a number of foreigners – including an Australian – have been kidnapped in recent years. Post has a kidnap contingency plan and staff are briefed on security matters on arrival. Travel to some regions of the Philippines is restricted. Staff should be familiar with the travel advisory for the Philippines.
The mother said the security risks would be addressed by a range of measures including the children being transported to and from school by a door-to-door private school bus service and by the children being transported to and from extracurricular activities by the family’s driver. The parties agreed that, in Australia, the children have almost never been to after-school care because one the parents take them to all extracurricular activities. The father argued that, apart from the security issue, it was preferable for the children to be taken to their various activities by their parents and this could continue if the children remained in Australia. The mother argued that the twins were at an age where they should be developing some greater independence no matter where they live and that attending some extracurricular activities on their own is appropriate, provided the safety issues were adequately addressed. Ms L, the clinical psychologist engaged by the parties, agreed that increasing independence within safe boundaries was appropriate for the younger children.
The younger children currently attend [T] School which offers both a primary and high school curriculum up to the end of Year 10. The International Baccalaureate is taught as part of the high school curriculum. The mother proposed that the younger children attend the [B] School of Manila which also teaches the International Baccalaureate. She said the school is comprised of 40 per cent Filipino enrolments which will facilitate the children mixing with Filipino children of their own age. She said all teaching is conducted in English which is the official language of the Philippines.
The father queried the extent of “cultural immersion” the children would experience attending the school and being driven to and from school and other activities. He said the following about the school in his affidavit filed on 26 September 2014:
When researching the [B] School of Manila (BSM), I was concerned at the contrast in the monolingual and very British flavour of the school, as contrasted with their current bilingual school, [T]. The bilingual education at the latter was the major attraction in seeking the children’s admission to [T] some years ago, so I am surprised that [Ms Voss] would want to overturn that in favour of a school that prides itself on “the highest quality British education, following an adapted form of the English National Curriculum”, a BSM vision that states that it “will deliver the highest standard of education in the Philippines for British children and for English speaking children of other nationalities”, a school Mission Statement that indicates that it provides “education for English speaking children”, and to gain admittance children “must be proficient speakers of English”. None of this reads to me as akin, or close to, the multicultural experience they currently enjoy at [T], and the very essence of why we chose [T] as their school.[1]
[1] Affidavit of the father filed 26 September 2014 at paragraph 10.1
The father argued that the younger children would have greater exposure to cultural diversity by remaining in Canberra and attending the [T] School which has a number of children from diplomatic families, many of whom come from other cultures, and by continuing their lessons taught in French at that school. I reject that analysis. At the [B] School of Manila the children would come into contact with children from a diverse range of cultures, even if they all speak English. The very fact of living in Manila, regardless of whether or not they are driven to various activities, would be a very different cultural experience to living in Canberra which is the point the mother was making.
The more valid point made by the father was that he and the mother had specifically chosen [T] School for the children because it is a bilingual school and lessons are taught in both French and English. The children’s proficiency in French may diminish over the three years of the posting. The mother said she expects the children would learn at least one other language while in Manila, preferably Mandarin which is taught at the school. They may also learn Tagalog (Filipino) and could continue their French studies if they wished. She said she was confident as a result of her discussions with both the French and Australian principals at the [T] School that the children would be able to re-enter the French stream at that school upon their return.
The mother proposed that if [X] relocates he attend the [omitted] School of Manila which is an American school. The father expressed similar concerns about the lack of cultural diversity at that school.
Another area of significant concern for the father was the issue of air pollution in Manila. It is common ground that [Y] is sporty and loves outdoor activities. He also suffers from asthma from time to time. The father argued that his asthma is likely to be exacerbated by the pollution which would result in his outdoor activities being severely curtailed. The mother said [Y]’s asthma is mild, is usually associated with him having a winter cold and does not normally occur more than once or twice per year. She said she had spoken at length to some other parents currently on posting in Manila and others who have recently returned. She said that she believes as a result of those discussions that the pollution will not necessarily restrict the children’s outdoor activities. She said that, in addition to outdoor activities, [Y] currently enjoys Taekwondo and ballet, both of which are indoor activities but, if the air quality or any other aspect of life in Manila caused major difficulties for any of the children, she would not continue the posting.
The mother’s proposals for the children to maintain a relationship with their father remained largely what they had been since the beginning. She prepared a schedule setting out the school holiday periods in Canberra and in Manila which was tendered as an aide memoir during the hearing. The school year in Manila commences in August and finishes in June or July of the following year. It is divided into three terms, each of which has a one week break in the middle. There is a break of about seven weeks at the end of each school year. The mother proposed that the children spend the Christmas break in 2015 and 2017, the Easter break in 2016 and 2018 and half of the long end of year school holidays in July/August in 2016 and 2017 with their father in Australia. This means the children would travel to Australia once during the first six months of the posting in 2015, twice in each of the middle two calendar years of the posting (2016 and 2017) and once during the last six months of the posting in 2018.
The Australian Government will fund one trip to Australia each year for the younger children and two trips for [X] to the Philippines each year. The mother proposed that the parents each pay one half of the costs of travel for the children which is not covered by the Government.
The mother said she is no longer able to provide financial assistance to the father to relocate or to travel regularly to Manila because she has had to spend $20,000 on legal fees. However, she would welcome and facilitate the children spending additional time with their father and with [X] whenever they are able to travel to the Philippines.
The mother said she regarded the posting as the opportunity of a lifetime and believed that if she withdrew at this stage she would not be offered another one. She reasoned that the age of the younger children makes it an ideal time to go as they will still be in junior high school by the time they come back and the posting would not disrupt their later years of high school.
The mother said she would not relocate if the children are not permitted to do so. She said she would be devastated in that event. She was, however, reasonably philosophical about the possibility of an adverse decision; she said it would not be the end of the world and that she would get over it. The mother’s counsel submitted that, notwithstanding the good sense and maturity demonstrated by her attitude, there was a risk to the mother and indirectly to the children if the relocation was not permitted because of the impact it would have on the mother’s emotional and psychological health. The mother said in her evidence that every career choice she had made since she commenced work with the Department [omitted] in 2004 was made with a view to ultimately obtaining an overseas posting. She was prescribed antidepressant medication in March 2014, after the father indicated his lack of consent and his unwillingness to engage with the issue of the posting. Although there is no medical evidence about the issue, I accept that the mother’s desire to accept the posting is long held, genuine and heartfelt and that she is likely to be distressed and may suffer some depression if that desire is thwarted. All of the children are aware of how much she wants the posting and, given their closeness to her, are likely to feel some emotional impact of the loss of the opportunity for her. There is insufficient evidence for me to assess whether and to what extent the mother’s parenting capacity may be effected by an adverse decision.

The father’s proposals

At the time he gave evidence on the first day of the trial, the father had no proposals whatsoever other than that the children should remain living in Australia. This was consistent with his refusal to discuss the mother’s proposals, except for the short period of time in which he expressed a willingness to relocate provided he could live with the mother. It was also consistent with his apparent attitude during the assessment for the family report. Ms L recorded on page 3 of her report that when she asked the father whether he considered the mother would facilitate a relationship between him and the children if they were overseas, he did not directly respond to the question, saying instead “they shouldn’t go” and giving reasons why that was the case.
When he gave evidence on the first day of the hearing, the father was urged to turn his mind overnight to what arrangements might be appropriate in the event the Court acceded to the mother’s application. He appeared stunned by that proposition at the time but, the following morning, his counsel advised that he was unable to improve on the mother’s proposals in the event she was permitted to relocate with the younger children.
The father was asked why he could not also relocate to Manila for the period of the mother’s posting. He agreed that there was nothing impeding such a move other than a desire not to. He has retired from the full-time workforce, has a tax-free superannuation pension of $65,000 per annum and an additional income of $23,000 per annum on which a small amount of tax is payable. He agreed the cost of renting accommodation in Manila would be about the same as what he is currently paying in rent and that the cost of living generally is likely to be lower. He does some voluntary work in Australia but might also be able to work on a voluntary capacity in Manila. If he remains in Australia and the children relocate, he has the financial resources to afford to travel to Manila to spend time with them on a regular basis which would supplement the trips to Australia funded by the Department.
The father has some legitimate concerns about the proposed relocation. The strongest are understandably focused on the effect on the children of separation from him. When there was some prospect of [X] relocating, the father expressed concern about what would happen if the relationship between [X] and his mother deteriorated in Manila. The mother said that some of the tension in her relationship with [X] is the result of her telling him some hard truths about his attitude and the choices he is making in life. She noted their relationship had improved with the respite provided by living with his father over the last eight months or so. She also noted that [X] was initially very excited and positive about the move to Manila before discussing it with his father. The father denied discouraging [X] about the relocation.
As both parties have agreed to implement [X]’s wishes about the relocation, I do not need to make any orders in relation to him. However, if the relocation of the younger children is permitted and [X] remains living in Australia with his father, the siblings will be separated for significant periods from each other and it would limit to some extent the opportunity for the father to spend long periods in Manila visiting the younger children. If the father decided to relocate to Manila, [X] would presumably go with him which would facilitate the ongoing relationship of all of the children with their non-residential parent and their sibling(s).
The father also expressed concern about his separation from the younger children, even for limited periods. He said that he and [Y] have a close relationship, sharing amongst other things a love of football and other outdoor activities. He expressed concern about how [Y] would cope being away from him. The mother agreed this was a risk but believed that, with appropriate support and regular contact with his father, [Y] would cope well.
The father was similarly concerned about the effect on [Z] of being separated from him as they have a close and affectionate relationship. Again, the mother believed [Z] would manage the separation with regular visits and telephone and Skype communication with her father.
As mentioned earlier, the father argued that the children would be mixing only with a certain socio-economic group within Manila and that the freedoms they currently enjoy would be curtailed. The mother acknowledged that some restrictions were a necessary part of ensuring the children’s safety, given the security risks.

The mother carefully analysed each of the father’s objections to the relocation which, because he declined to discuss the issue with her, were largely communicated to her through the family report. The mother did not have an opportunity to answer those concerns as part of the family report process as she was interviewed by Ms L before the father but she did answer the concerns comprehensively in her affidavit filed on 24 December 2014. In my view she provided a reasonable response to the father’s concerns about air pollution, security, supervision of the children and the opportunity for the children to undertake extracurricular activities.
The overarching argument against the relocation offered by the father is that the children are thriving in the current environment and it is a major and unnecessary disruption to them to relocate. The mother agreed the children are currently settled and thriving but argued the benefits to them which will flow from the experience of living overseas for three years are significant and outweigh the acknowledged risks and disadvantages.

Ms L’s evidence

Ms L met with each of the parents and the children on 10 November 2014. She produced a report dated 24 November 2014 and gave oral evidence on 30 January 2015.
Ms L formed the view that, generally, the parents were able to manage disputes and differences of opinion well. I agree.
Ms L identified a difference in the parenting approach of each party, being that the mother prefers a greater degree of structure and forward planning than the husband who values a greater degree of flexibility and spontaneity.
Ms L said the mother “spoke warmly of all three children and was able to discuss their relative strengths and weaknesses”. The father also spoke about the children “in balanced, loving terms”.
Each parent spoke about the strains in the relationship between [X] and his mother. The father also described some challenges in [X]’s behaviour but Ms L assessed the father as managing those challenges well.
Ms L noted that the father’s retirement from the workforce enabled him to spend much more one-on-one time with the children. She said that [Y] and [X] in particular enjoy his more active play with them. Ms L described the father’s personality as extraverted, energetic and positive. She said “Given the positive relationships it is difficult to imagine how it would not be detrimental to [X] and [Y] in particular to be removed from their experience of a positive male role model”.[2]
[2] Report of Ms L 24 November 2014, page 7
Ms L noted that both parents are extensively involved in the children’s school life and extracurricular activities which means the children rarely attend after school care or use public transport. She appeared to accept the father’s assertion that in Manila the children would not be able to play outdoors or engage in a range of activities similar to those they enjoy in Canberra. She concluded that they are likely to find that somewhat of a challenge.
During cross-examination by counsel for the father, Ms L said she did not think Skype communication was the best medium for [Y] as he was not very familiar with it but expected [Z] to manage it well. She said that [Z] is academic and [Y] is more interested in outdoor activities and sports. She said it was important to his self-esteem to build on that. She agreed that football in particular is an interest he shares with his older brother and his father. She said he is the child most likely to be at risk from the proposed relocation.
Ms L reported that the mother outlined a range of pros and cons about the proposed relocation. She said the positives were said to be the opportunities for travel, the experience of a different lifestyle and the development of a social conscience. She reported the negatives as being related to separation from their father and some of the living conditions. I infer from this that the mother presented a more balanced view to Ms L than the father. The mother discussed a range of options to facilitate the children maintaining a meaningful relationship with their father if they relocated but the father did not, and Ms L did not discuss the mother’s options with him. She agreed that the father had metaphorically put his head in the sand and was not willing to consider any options in support of the relocation.
Ms L concluded that the mother’s application to relocate appeared to be made in good faith and that she had demonstrated she was able to support the children’s relationship with their father including their expressed wishes to spend more time with him.
In her report Ms L made the following comment about the children’s likely adjustment to the proposed relocation:
… the children did not present with temperaments or personalities that would suggest that they would find change or adjustment more difficult than their peers.[3]
[3] Report of Ms L 24 November 2014 at page 7
Ms L acknowledged there were some clear benefits to the children of relocating but, in her report, marginally recommended against it:
Living overseas in a different culture can be good for children from a psychological perspective (e.g. Developing openness, boosting resilience and self-esteem if the adjustment is managed well, developing perspective and a sense of gratitude/empathy, improving general knowledge) but can also present with risks. In this particular case any advantages of living overseas would likely be overshadowed by Mr Horner’s absence, the significant change in lifestyle, and the curtailment of enjoyed activities.[4]
[4] Ibid, page 9
It was put to Ms L in cross-examination that she had put significant weight on the negative aspects of the relocation including security issues and air pollution. She denied doing so but I find that hard to accept given that, in the quote above, two of the three risks which she said would outweigh the benefits of the relocation were the significant change in lifestyle and the curtailment of the children’s activities both of which relate to pollution and security issues. The remaining issue related to the absence of the children’s father which is, of course, a very important matter.
The mother disputed the father’s assertions about the impact the relocation was likely to have on the children’s activities. She said she had spoken at length to other people with children currently on posting to Manila and expressed confidence that the children could engage in some outdoor activities. She said she had provided the names and contact details of those people to the father so that he could discuss those issues with them but he had failed to avail himself of that opportunity. In those circumstances, I place more weight on the mother’s views about those issues than the father’s as she has actively sought to inform herself about them.
During cross-examination by counsel for the mother, Ms L said that, although it was difficult to predict how the children would cope with the proposed relocation, given the children’s resilience and the mother’s attunement to their needs, it would be reasonable for it to be attempted.
Ms L agreed with the obvious proposition that if the relocation goes ahead, the best option for the children would be for the father to also relocate.

Credibility issues

The applicant mother was a very credible witness. She was open and straightforward in her answers. She explained at length why she had reached a particular view or position. She conceded reasonably, including in relation to the more difficult aspects of her case. She did not idealise the experience she and the children are likely to have if permitted to relocate. On the contrary, she said she expected there would be times where the children would be uncomfortable and possibly distressed. She spoke about her own discomfort and distress when living apart from her parents for a year during her childhood. She reasoned that the physical and emotional discomfort was part of the overall experience and would help build the children’s psychological and emotional resilience as well as exposing them to life in a part of the world they might not otherwise experience. She expected that the net effect would be extremely positive for them.
The father was generally a credible witness. He appeared to give his evidence in a straightforward and honest manner. I have no doubt that he is genuinely distressed at the thought of his children living overseas for three years, notwithstanding the opportunities for an ongoing relationship with them. I also have no doubt that he is entirely genuine about his desire not to disrupt the children’s current arrangements.
Despite a generally positive impression given by him, however, there were aspects of the father’s evidence which undermined his credibility.
The first relates to his evidence that the mother had “banned” him from attending the younger children’s music lessons. He said it was an important part of their development from which he was excluded. When that was explored in evidence, I was satisfied the father had overstated the case and misrepresented the issue. It became clear that [Z]’s piano lessons and [Y]’s guitar lessons occurred on Monday afternoons at the mother’s home. The mother said the father had previously “dropped in” to her home to watch the lessons and [Y] had invited him for dinner. She had gone along with that but did not want it to become a regular event. In a subsequent text message exchange the father adopted a superior and supercilious attitude, repeating almost mantra-like that all he was concerned about was his children’s development and the mother was shutting him out. The transcript of the messages came into evidence and read as follows:
Father: Socks? If I drop in for their music @415 can I collect [Y] and [X]’s toothbrushes?
Mother: I’d rather you didn’t come today. I don’t have many single socks at all. I can drop toothbrushes around in the morning.
Father: Why not today? I’m their father, interested in their development (& paying half).
Mother: You’re not paying half. Your calculation for [Z]’s piano is significantly less than half, and I paid almost all of term 1 myself.
This is my house, and I have the right to invite who I like – or not. I shouldn’t need to justify not inviting you over. I don’t come into your house, and am not invited to, which is fine, but you expect more than you give.
Father: Another rant when all I’m doing is acting as a parent. As long as [Z] & [Y] know that I’m not there through disinterest on [my] part.
Mother: Not a rant. Read your message. What do you expect?
I’m sure you’ll pitch the message to [Y] and [Z]!
Father: A rant. A father wanting to observe one of their developments, being blocked for what reason? “I’d rather you didn’t come today”. Malice I think. As long as kids know why I’m not there as I’d like to be.
Mother: I don’t need to justify not inviting you over. Spare me the rest of your bullshit
Father: A father being blocked from observing his children’s developments.
Mother: Not at all. You can hire a piano keyboard for less than the price of a case a month. Its [sic] about priorities. But it’s always easier to blame me.
Father: And have lessons here on the weeks I pay? Agreed. I’m sure [names omitted] won’t have a problem with that, it being just around the corner. I’ll let them know. Good outcome.
And I’m of course happy to collect them from school those days lessons are @ [omitted].
The mother added a postscript to the transcript of the text messages indicating that she did not agree to the music lessons occurring at the father’s house on Mondays as the children were with her that day but that he was free to organise lessons on a different day when the children were due to be with him. He apparently did not do so.
The second credibility issue concerned the father’s unwillingness to occasionally care for the children for extra time at the mother’s request. The mother said that, notwithstanding the father’s assertion that he wants to spend as much time as possible with the children, she has asked him from time to time to have the children for extra time when she has needed to travel for work but he has declined to assist her. She said that consequently, if she has to attend interstate meetings for work she tries to organise for them to occur on a Friday afternoon when the children are due to be at their father’s home. She said she also sometimes relied on friends or declined the opportunity to participate in the meeting. She was not challenged about that evidence in cross-examination and I accept it.
In July 2013 the mother had the opportunity to lead a work delegation to Cambodia for one week. She asked the father to care for the children while she was away but he declined. In cross-examination the father said he could not quite recall the event but did not deny it happened. I accept the mother’s evidence about it and conclude that on those occasions the father's genuine desire to spend more time with the children was overridden by his greater desire not to assist the mother.
The father claimed a moral and philosophical objection to moving to Manila on the basis that he would be “the rich white guy” living in relative opulence in a poor society. However, that apparently would not have prevented him from moving to Manila if he could live with the mother. He also recently took the children on a holiday to Bali and stayed with them in a resort. He was asked how that sat with his moral philosophy. He said he simply wanted to have a nice holiday with his children. I place no weight on his moral objection to living in Manila in those circumstances.

The law in relation to parenting orders

Parenting proceedings in Australia are governed by Part VII of the Family Law Act 1975. Section 60B of the Act sets out the objects and principles underlying Part VII. The most relevant object for the purpose of the current proceedings is “ensuring the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.[5] The relevant principles underlying that object are as follows:
(a) children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development…[6]
[5] Section 60B(1)(a) Family Law Act 1975
[6] Section 60B(2)
In making any parenting order the Court must regard the best interests of the children as the paramount consideration.[7] However it is not the only consideration. A parent’s right to freedom of movement is also a relevant consideration but, where it conflicts with the best interests of the child, it must give way to those interests.
[7] Section 60CA
In determining what is in the best interest of the children the Court must have regard to the two primary considerations set out in section 60CC(2) of the Act which are, first, the benefit to the children of having a meaningful relationship with both parents and, secondly, the need to protect the children from harm as a result of being subjected or exposed to abuse, neglect or family violence. In this case there is no suggestion of abuse, neglect or family violence which leaves as the primary consideration the benefit to the children of a meaningful relationship with both parents. There is no doubt the children currently have a meaningful relationship with both parents. The real issue is whether and to what extent the proposed relocation would interfere with the children’s enjoyment of that relationship with their father.
The Court is also required to have regard to the additional considerations set out in section 60CC(3) of the Act. The first two relate to any views expressed by the children and the nature of the relationship of each child with each parent.[8]
[8] Section 60CC(3)(a) and (b)
I am satisfied on the evidence that the children all have a close, loving and trusting relationship with each parent. They are used to being cared for on a regular basis by both parents who co-operate very well for the sake of the children. There has been some strain in the relationship between [X] and his mother. The mother spoke frankly to Ms L about [X] being at times “difficult, oppositional and sullen” towards her and said that he had been much calmer since he went to live with his father in July 2014. She said she believed [X] was going through a stage of development in which he is separating emotionally from both parents and looking to a greater extent to peers as role models. She acknowledged that [X] was drawn to his father’s more extroverted personality and relaxed attitude but said she believed he also needed the benefit of the sometimes tough questions she asked of him about his behaviour and attitude. She expressed confidence in the strength of their relationship over the long term and noted there had been an improvement in their relationship since the change in his living arrangements.
The evidence of the views of the children is reasonably limited given neither party has discussed the matter in great depth with them. The mother said that when she first told the children about the possible relocation, [X] was excited and positive about the move and surprised when she suggested the father may not agree to the move. He later told his mother that he believed the father would agree to the move if he was able to go as well. That was accurate.
Ultimately [X] changed his mind about moving to Manila. Given his closeness to his father, it is possible he was affected by his father’s negative attitude to the move but he may simply have changed his mind as he thought more about the implications. Ms L said she found no evidence of the father putting pressure on [X] to change his mind. She said [X] told her that at times he missed his mother but had also been having conflict with his younger brother and preferred not to live with the twins. Both parties have agreed that [X] should be able to relocate or remain in Australia as he chooses.
Neither [Y] nor [Z] expressed clear views about the proposed relocation. Ms L said her impression was that [Y] would prefer to remain in Australia, partly because he would be sad about being away from his father but also because the lifestyle in Australia probably suits his interests more than the lifestyle that will be available in Manila.

Ms L agreed during cross-examination that [Y] had the impression that his father would be left behind and would be sad if the rest of the family moved to Manila. She agreed that would have informed [Y]’s view about the relocation. There is no doubt [Y] would miss his father and brother. He shares interests with his father and idolises his older brother. By way of counterpoint, the mother said that [X] exploits his relationship with [Y] to some extent and can be cruel to him. She said she believed there would be some advantages for [Y] in having some space from [X].
[Z] would also miss her father and older brother, with both of whom she shares a close relationship. However, Ms L said [Z]’s closest attachment is with her mother and that is the more important factor for her at this stage.
I am satisfied on the evidence that if both parents supported the move, both [Y] and [Z] would likely be content to go to Manila for three years. I am also satisfied they have been influenced to some extent by their father’s distress and his statement about not seeing them for three years.
I am required to consider the likely effect of any changes to the children’s circumstances including the effect of any separation of the children from either parent or another child or person with whom they have been living.[9] The proposed relocation would certainly cause a separation of the younger children from their father and from their older brother if he does not relocate. There is no doubt that such separation would have an effect on the children as they love their father and their older brother and would miss them. They may at times be emotionally distressed about the separation. [Z] is closest to her mother and likely to manage the separation from her father and [X] better than [Y]. However, both of the younger children have a strong and secure relationship with their mother. They also have a strong and secure relationship with their father and brother and, in my view, the separation is not likely to have any significant long-term deleterious effect on those relationships, especially in light of the proposals by the mother to facilitate regular and substantial contact, both face-to-face and through electronic means. If [X] does not relocate he will no doubt miss his mother and his siblings but, for the same reasons, in my view those relationships will survive the separation.
[9] Section 60CC(3)(d)

I am required to consider the practical difficulty and expense of the children spending time and communicating with a parent and whether those difficulties will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.[10] Given the distance there are, of course, practical difficulties and expenses involved in the children spending time with both parents. However, the parties have the financial resources to meet the expense of international travel for themselves and the children. The amount of face-to-face contact will be significantly reduced if the relocation is permitted but each child can still spend regular, predictable time with each parent and the facilities available for electronic communication including Skype and similar devices will enable the children to communicate with and “see” each parent very regularly.
[10] Section 60CC(3)(e)
Another matter I am required to take into account is the extent to which each of the parents has taken or failed to take the opportunity to participate in decision-making in relation to the children, to spend time with the children and to communicate with them.[11] I am satisfied that, in general, each parent has taken every opportunity to do those things. The only exception is that, despite his protestations about wanting to spend as much time as possible with the children, the father failed to take the opportunity to spend more time with the children when requested to do so by the mother to enable her to travel away from Canberra for work purposes.
[11] Section 60CC(3)(c)
I am required to take into account the extent to which each parent has fulfilled their obligations to maintain the children.[12] There is no issue in this regard. Both parents have provided financial support to the children to the full extent of their capacity. When the father retired, the child support assessment changed to such an extent that the mother was required to pay child support to the father. This appears to be because, although his income is about the same as the mother’s, most of the father’s is tax-free and the child support assessment was based on the small component of his income which is taxable. Nevertheless, to his credit, the father did not rely on the assessment and kept making a financial contribution to the mother for the support of the children. The mother subsequently applied for a reassessment of child-support taking into account the actual income of the father.
[12] Section 60CC(3)(ca)
The last two relevant considerations I am required to take into account are the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs and the attitude to the children and to the responsibilities of parenthood demonstrated by each parent.[13] The evidence in relation to each of these two considerations is similar. In my view each parent has the capacity to provide for the full range of needs of the children, including their emotional and intellectual needs. However, I am satisfied the mother has a greater capacity to provide for the emotional needs of the children. Although it is her proposal to relocate and she has a vested interest in achieving it, the mother has consistently shown a more mature attitude than the father to working through the disputed issues and developing options to protect and promote the children’s relationship with him. The father was very manipulative in allowing the children to believe that if they relocated they would not see him for three years. Ms L agreed that it was an example of him putting his own emotional needs above those of his children. The mother said in one of her emails to the father that if the situation was reversed and he was the one wanting to relocate with the children, she would do everything she could to make it happen because of the benefits which she believed would flow to the children. I accept that is genuinely her attitude and that she would have done so.
[13] Section 60CC(3)(f) and (i)
A poignant piece of evidence about the mother’s emotional maturity was provided in the comment made by the children to Ms L that, although they know their mother would be very disappointed if she was not able to relocate, she would get over her disappointment as “she gets over things quickly”.
Similarly, while both parties have, in general, displayed an excellent attitude to the responsibilities of parenthood, in my view the mother has displayed a superior attitude by being able to more consistently place the children’s needs above her own.
No parenting orders have previously been made in relation to the children the subject of these proceedings. Accordingly, by operation of section 61C(1) of the Family Law Act, each parent has parental responsibility for the children. That responsibility is not altered or diminished in any way except as expressly provided for in any parenting order and only to the extent necessary to give effect to the order. [14]
[14] Section 61D(2) Family Law Act 1975
Neither party sought orders relating to parental responsibility. Had they done so the Court would be required to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility.[15] Such an order would require the parties to consult each other about major long-term issues in relation to the children and to make a genuine effort to come to a joint decision. The definition of major long-term issues in the Family Law Act includes “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent”.[16] Although I am not required to make any order about parental responsibility, the attitude of each of the parents to the exercise of parental responsibility to date is relevant to the exercise of my discretion as, in my view, although not expressly stated in the Family Law Act, the obligation to make a genuine effort to reach a joint decision about important matters applies as much to parents who have parental responsibility by virtue of section 61C of the Act as it does to those who have equal shared parental responsibility pursuant to section 61DA. The mother has made genuine efforts to reach a joint decision about the relocation issue since it first arose. She has offered a range of options for the father’s consideration including providing him with financial assistance to relocate or to visit on a regular basis. The father has not made a genuine effort to reach a joint decision on the issue. On the contrary, apart from the short period of time when he was prepared to relocate on the condition he could live with the mother, he has refused to consider or discuss the range of options put forward by the mother. He has effectively sat on his hands and stated that the best arrangement is that represented by the status quo. His failure to make an effort in that regard does not reflect well on the exercise by him of his parental responsibilities.
[15] Section 61DA(1)
[16] Section 4(1) Family Law Act 1975
Like many relocation cases, this is a difficult case to decide because each parent has a perfectly legitimate perspective. Given the children are settled, happy and thriving in their current arrangements, the father argues the best and safest course is to refuse the application which would enable the children to continue with the arrangements that have served them well so far. However, to simply adopt that course without properly considering the mother’s proposals would be wrong. I was referred by counsel for the mother to the case of Sayer v Radcliffe [17] determined by the Full Court of the Family Court of Australia in which their Honours Faulks DCJ, May and Ainslie-Wallace JJ, said as follows about such an approach:
A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents… 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.
[17] Sayer v Radcliffe and Anor (2012) 48 FamLR 298
Counsel for the mother submitted that there was nothing to stop the father relocating to Manila which would ensure the children were able to maintain a meaningful relationship with both parents for the duration of the proposed relocation. She relied on the case of U v U (2002) FLC 93-112, a decision of the High Court of Australia in which Gaudron and Hayne JJ separately made observations to the effect that, in relocation cases, it is important to explore whether or not the parent resisting the relocation might also relocate in order to facilitate the child’s relationship with both parents. Hayne J said the following about that at paragraphs 175 to 176 of the judgment:
175. When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.
176. It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act. If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
The comments are very relevant to this case as there is no significant impediment to the father relocating other than his preference not to as he has both the means and the capacity to do so.

Conclusion

Except for a six-month period when the parties first moved to Canberra, the mother has worked part-time since the children were born because of her responsibilities as a parent and homemaker. An overseas posting has been her deep and long-held desire. She was supported by the father in her application for such a posting in 2011 but she was unsuccessful at that time. Her opportunity has finally come.
If the mother’s ambitions and desire for the relocation were inconsistent with the children’s best interests they would have to give way. In this case, however, they are not inconsistent. The father has some legitimate concerns about the posting but in my view they have been adequately addressed by the mother. The father’s ultimate objection is to the disruption to the comfortable and happy life he and the children enjoy in Australia and in which the children are thriving. Although that is perfectly understandable, at the end of the day his position throughout the proceedings can be viewed as him asking the Court, in the words of Hayne J in U v U, to “subordinate [the mother’s] ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing.”
The determining factor in my view is whether or not the proposed relocation would interfere with the children’s right to maintain a meaningful relationship with their father. In my view if the relocation is permitted the mother can be trusted to actively encourage and facilitate the children’s relationship with their father and to facilitate as much time with him as possible. The arrangements she proposes will enable the children to maintain a meaningful relationship with him. The father is not working, has a good income and has the freedom to relocate or to travel on a regular basis to spend time with the children, notwithstanding his obligation to care for [X] if he remains in Australia. However, even if the father does not take the opportunity to spend time with the children in the Philippines, the mother’s proposals for the children to return to Australia each year and twice in the middle two years of the posting will allow the children to maintain a meaningful relationship with their father and with their brother if he does not relocate.
I am satisfied on the evidence that the strength of the children’s relationship with each parent and with each other means that those relationships will continue in a meaningful way despite the period of separation.
I am satisfied overall that the proposed relocation is consistent with the best interests of the children. Accordingly, the mother will be permitted to relocate with them to Manila for the three-year posting.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Associate:

Date: 18 February 2015

[2015] FCCA 340

18 February 2015

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