W & R - [2006] FamCA 25

[2006] FamCA 25

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. (P) BRF 2723 of 2004

BETWEEN:
W

Applicant Father

AND:
R

Respondent Mother

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE CARMODY

Date of Hearing: 17 October 2005

Date of Judgment: 30 January 2006

Appearances: Ms. Carew of Counsel, instructed by Carter Naughton Rice Family Law of Level 2/309 North Quay, Brisbane, Qld. 4000, appeared on behalf of the Applicant Father.

Mr. Michael Byrne of Counsel, instructed by Klar & Klar, Solicitors of PO Box 1027 Stafford, Qld, 4053, appeared on behalf of the Respondent Mother.

Name of Case:  W AND R
File Number:  BRF 2723 of 2004
Date of Hearing:                   17 October 2005
Date of Judgment:                30 January 2006
Coram:  Carmody J

Catchwords: FAMILY LAW – PARENTING ORDERS – Proposal involving overseas relocation of children – Paramountcy principle – Family Law Act 1975 (Cth) ss 60B, 61C, 64B(2), 65D(1), 65E, 65N, 65Y, 68F(2)

Legislation:Care of Children Act 2005 (NZ), ss 4, 5, 16
Children Act 1989 (UK), s 13
Divorce Act 1985 (RSC), s 16(8)
Family Law Act 1975 (Cth), ss 43(b), 60B, 61B, 61C, 61D, 64B, 65D(1), 65E, 65M, 65N, 65Y(1), 65Z(1), 67ZC, 68B, 68F(2), 114(3)

Cases considered: A and A: Relocation Approach (2000) FLC 93-035

A v A (Child: Removal from Jurisdiction) [1980] 1 FLR 380
AMS v AIF (1999) 199 CLR 160
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Belton v Belton [1987] 2 FLR 343
Bolitho and Cohen (2005) FLC 93-224
Carter v Brooks (1990) 2 O.R. (3d) 321
CDJ v VAJ (1998) 197 CLR 172
Chamberlain v De la Mare (1983) 4 Fam Law R 434
Cooper v Cooper 491 A.2d 606 (1984)
Craven and Craven (1976) FLC 90-049
D v S [2002] NZFLR 116
D v SV (2003) FLC 93-137
D’Onofrio v D’Onofrio 365 A.2d 27 (1976)
Driscoll and Valentine [2004] FamCA 830
Fortin v Fortin 500 N.W.2d 229 (SD 1993)
Fragomeli and Fragomeli (1993) FLC 92-393
Gordon v Goertz [1996] 2 SCR 27
Gronow and Gronow (1979) 144 CLR 513
H and T [2004] FamCA 200
Holmes and Holmes (1988) FLC 91-918
I and I (1995) FLC 92-604
K and Z (1997) FLC 92-783
Lane v Schenck 614 A.2d 786 (1992)
Lapointe v Lapointe [1995] 10 WWR 609
Lonslow and Hennig [1986] 2 Fam Law R 378
Lorenz v Lorenz 788 P.2d 328 (1990)
MacGyver v Richards (1995) 11 RFL (4th) 432
Martin and Matruglio (1999) FLC 92-876
Mathieson and Mathieson (1977) FLC 90-230
Mize v Mize 621 So. 2d 417 (1993)
Nash v Nash [1973] 2 All ER 704
Paskandy and Paskandy (1999) FLC 92-878
Payne and Payne [2001] 1 FLR 1052
PJ and NW [2005] FamCA 162
Poel and Poel [1970] 1 WLR 1469
Re B (Leave to Remove: Impact of Refusal) [2005] 2 FLR 239
Re C (Leave to Remove from Jurisdiction) [2000] 2 FLR 457
Re G (Removal from Jurisdiction) [2005] 2 FLR 166
Re L (Contact: Domestic Violence) and Ors [2000] 2 FLR 334
Re Marriage of Burgess (1996) 13 Cal 4^th 25
Re Marriage of Carlson (1991) 229 Cal.App.3d 1330
Re Marriage of Elser 895 P.2d 619 (1995)
Re Marriage of Lamusga 88 P.3d 81 (2004)
Re S (Contact: Promoting Relationship with Absent Parent) [2004] 1 FLR 1279
Re S (Removal from Jurisdiction) [2003] 2 FLR 1043
Rice and Asplund (1979) FLC 90-725
Skeates-Udy and Skeates (1995) FLC 92-626
Stadniczenko and Stadniczenko [1995] NZFLR 493
Sullivan v Sullivan [2002] 38 VaApp 773
Taylor v Taylor 849 S.W.2d 319 (1993)
Tropea v Tropea 665 N.E.2d 145 (1996)
Tyler v Tyler [1989] 2 FLR 158
U v U (2002) 211 CLR 238
Weiss v Weiss 418 N.E.2d 377 (1981)

The parties, originally from New Zealand, commenced cohabitation in 1992, married in 1999 and finally separated in early 2003. There were three children of the marriage, aged 11, 8 and 5 at the date of trial.

The parties entered into interim consent orders in November 2004 providing that the children reside with the mother on the condition that she did not relocate to another country with the children. In June 2005, however, the father filed an application seeking a reversal of the residence orders on the basis of the mother’s intention to relocate to New Zealand with the children.

In her response, the mother sought to retain the status of residence parent. She preferably sought to reside with the children in New Zealand but, in the alternative, sought an order preserving the status quo.

Held:

1. Freedom of movement and the right of parents to decide where they live, including outside Australia, are highly important social values which are not to be interfered with lightly, especially where the relocating parent is the established and unchallenged primary carer of the children with a proven record of meeting their needs in performing that role.

2. However, parents enjoy only as much freedom as is compatible with the obligations they have in relation to their children and international mobility and (where applicable) the right of a residence mother to equal treatment without discrimination before the law do not take precedence over the best interests of the child(ren).

3. Accordingly, parenting orders made under the Family Law Act1975 may contain conditions affecting where a residence parent may live with their child(ren).

4. The issue in a parenting application involving a proposal to relocate with the child(ren) is – should the child(ren) live with the relocating parent in his or her new location or with the other parent in theirs?

5. The best interests of the child(ren) is the paramount but not the sole consideration. The general quality of life and economic, cultural and psychological welfare of both parents, but particularly the residence parent, are relevant and important. The difference between the circumstances and needs of women and men should be taken into account so that both are treated equally and fairly.

6. Neither the object nor principles in s 60B or the provisions in s 61C lay down absolute rules in relation to the rights of children to maintain personal relations and ‘direct’ contact with ‘both’ parents. Account should be taken of the anomalous effects that enforcing these rights can often have on women. Nonetheless, the strength of the statutory policy in favour of shared parental responsibility and the weight to be accorded to the object and principles in s 60B should not be underestimated.

7. The needs and well-being of the primary carer or resident parent should not be given a priori benefit at the expense of a continuing relationship and regular direct contact between the child(ren) and the non-resident parent on the basis of the assumption that the welfare of a child depends upon the emotional and psychological stability and security of its primary carer or residence parent more than it does on the nature and overall quality, including the duration and frequency, of existing contact arrangements.

8. Equating the happiness and contentment of residence mothers with the rights, wants and needs of their child(ren), as the English decision in Payne and Payne [2001] 1 FLR 1052 essentially does, is likely in many cases to contravene s 65E by obscuring or overshadowing the child(ren)’s best interests and making the cooperative parenting model envisaged in ss 60B and 61C practically impossible.
9. Courts exercising the family jurisdiction in Australia should take the wide, all-factor, child-centered approach emphatically and unanimously endorsed by the appeal division of the Family Court in B and B: Family Law Reform Act 1995 and favoured in New Zealand and Canada rather than follow the Payne guidelines.

10. In each case, the court must consider what parenting orders, if any, to make in order to promote the best interests of the child(ren). It is not limited to choosing between the proposals put up by the parties but is bound to identify or, if necessary, devise a set of residence/contact arrangements that properly provides for the needs, adequately protects, and otherwise accords with the best interests of the child and promotes the object and principles in s 60B and the provisions of s 61C.

11. In this case, the mother, a part-Maori woman, was the primary carer prior to separation and had acted as interim parent since then. Her proposal to return to her home country of New Zealand more than two years after final separation was found to be a bona fide and reasonable one. However, remaining in Brisbane was considered to be most likely to achieve the object in s 60B and secure the children’s overall best interests, including their right and need to be effectively fathered as well as mothered.

Introduction

This is a defended parenting case involving an international relocation proposal. At issue is with which one of their parents (and where) the children of the marriage should reside in the future and how much contact they should have with the other.

Brief facts

The parties commenced cohabitating in 1992 and married in 1999. The mother is part-Maori. The father is of European descent. There are three children, TE aged eleven, TA aged eight, and E aged five. The parties separated temporarily at the end of 2000 but reconciled in mid-2001. The family moved to Brisbane and settled in the northern suburbs in early 2002.
Final separation occurred in January 2003. On 8 September 2004, the father lodged a final orders application conceding principal residence to the mother on condition that she did not remove them to another country and seeking joint long term parental responsibility with regular defined contact. The mother subsequently responded accepting to offer of residence, proposing contact as agreed or ordered and seeking permission to take the children overseas. Interim orders were made by consent in November 2004 providing for residence to the mother and joint parental responsibility with mid-weekly overnight contact from Wednesday after school until Thursday before school, alternate weekends from Friday afternoon until Monday morning and, in respect of TE, an additional overnight each week to coincide with football training during the football season and at other times each Thursday night.
The father and children have had contact with each other in line with those orders from then till now.
On 31 March 2005, a court counsellor with the court mediation service issued a short form Family Report recommending against relocation.
On 29 June 2005 the father filed for a reversal of residence order in the event of the mother relocating and proposed contact for half the Christmas school holidays, the Easter and September school holidays in 2006 and each alternate year thereafter; the mid-year school holidays in 2007 and in subsequent alternate years, in addition to reasonable telephone and e-mail contact with travel costs to be shared equally. Alternatively, he contended that even if the mother decided to stay the current contact regime should be converted into shared residence on a rotating weekly basis with handovers on Fridays after school.
In her Response of 8 August 2005 the mother sought to retain the status of resident parent preferably in New Zealand, with regular blocks of school holiday contact to the father at defined times in every school year, (with costs to be shared) plus an additional contact for a week of his choice and at his sole expense in either country and at any other time that he is in New Zealand as agreed on two weeks’ written notice, as well as reasonable telephone, e-mail and web-cam contact. Alternatively, the mother wants the status quo preserved.
There is no realistic prospect of the mother leaving Australia without the children or the father agreeing to transfer to New Zealand.
All three children are currently in primary school. The two older children have been at the same school since arriving in Brisbane in 2002. TE is currently in grade 6. TA is a grade 3 student and E attends pre-school. All three children excel academically and socially. School reports are glowing in their comments about them.
The children are well settled where they are. They have established friendship groups at school and in the local neighbourhood.
None of the mother's relatives live in Australia. A life-long friend of hers has recently moved to Sydney and she has a "handful" of close friends in Brisbane.
TE is a keen football player with international aspirations. He also plays cricket and enjoys track and field athletics. The two girls are also very good at sports. TA is a netballer. She attends an athletics club with E every week. Both parents are heavily involved in the children's school, sporting and community based activities. The father currently coaches TE’s club football side.
The mother works part-time for a nursing organisation two days a week. The father is in the banking industry. His working hours are flexible enough to accommodate current contact arrangements. However, the children attend child-care for one hour after school every Wednesday before over-nighting at their father's. All other contact change-overs occur either at the former matrimonial home, where the mother continues to reside with the children, or the father's new house located in the same suburb about four or five minutes away from the mother's residence.
The father continues to pay the mortgage and other outgoings on the former matrimonial home and pays agreed child support.
Neither party has re-partnered but the father has a steady girlfriend, who spends a lot of time at his place but does not live in. She is well-acquainted with the children but, as is common, they are emotionally ambivalent towards her.
The mother is not entitled to Australian social security payments and apart from her own small part time income is economically dependent on the father.
The children are closely attached to both parents. The indications are that they are all well-balanced, resourceful, resilient and adaptable children. They would probably thrive in any learning or living environment in Brisbane or New Zealand and are likely to quickly re-establish friendships and social networks if they moved to New Zealand with their mother.
The father could, but does not want to, return to New Zealand. He has a stable relationship and secure job here and does not think that his prospects in New Zealand would be as good because of down-sizing in the industry. However, he admits that he has not really investigated the possibility.
The father has applied for permanent residence in Australia and, I am told by both counsel, success is virtually assured.

The competing proposals

Both parties put up alternative proposals raising four possible outcomes. They are: the children reside in Australia (1) with the father (2) with the mother (3) both of them on a shared or rotational basis or (4) with the mother 2,500 kilometres away in New Zealand.
The mother wants to return to New Zealand to gain some financial independence, self-determination, be closer to family and re-connect with the lifestyle, culture and tribal traditions of her ethnic group. She is not as happy here as she thinks she would be there and believes that it would be better for the children if they grew up closer to their paternal grandparents, other members of her extended family on both sides and her wider ethnic community.
She proposes to accept an offer of employment as an office manager of a sporting organisation in New Zealand. The company is owned by a close friend, Ms L, and her husband.
The conditions of employment (annexed to the mother's affidavit) provide for a gross annual salary of $30,000 for a total of 30 hours per week between 9.00 am and 3.00pm, Monday to Friday, at $19.23 an hour. The place of work could alter from time to time depending on operational needs. After six months' continuous employment the mother would become entitled to five days' sick leave a year.
Although the mother meets some of the minimum requirements for the position, it is clear that the offer was made predominantly because of her close friendship with Ms L and her "personality . . . and motherly organisational skills": (cf. Ms. L's affidavit at par 6).
The draft employment contract is only written for a period of 12 months. The mother would not become entitled to any paid holiday leave during this period which means that the children would have to be cared for by relatives or their paternal grandparents when the mother was at work and they were not at school or on contact with their father.
The mother testified that from 2007 she wanted to undertake a six year part-time course studying midwifery at a polytechnic about an hour's drive from where she plans to reside in New Zealand. This has always been her dream.
I infer from this that her employment with the sporting organisation would only be temporary and that thereafter she would maintain herself and the children with child support payments, casual employment and government subsidies.
The position with the sporting organisation comes with a three bedroom staff house for $60 per week. The mother is willing to move into this accommodation "site unseen".
On the basis of the assumption that her application succeeds, the mother proposes block holiday contact with the father in Australia from 2006 every alternate Easter, half of the three end of term breaks and four weeks at Christmas. She also offers additional contact in New Zealand for a minimum of one week and other times on two weeks notice to be agreed. Twice weekly telephone and other indirect contact, including e-mail and webcam is also provided for.
She envisages that contact costs, including air-travel, would be shared equally.
In the event that the mother relocates to New Zealand and the children reside with him, the father proposes that the mother have contact in 2006 and each alternate year thereafter over the Easter, Christmas and September school holidays, and in 2007 and each alternate year for the mid-year school holidays, plus reasonable telephone and e-mail contact. He also proposes that costs associated with contact travel be borne equally by the parties.
If the mother stays here in Brisbane, she wants to retain the current residence - contact arrangements whereas the father wants the children to spend alternate weeks from Friday to Friday with each parent.

The law

In Australia matters concerning children are governed by Pt VII of the Family Law Act 1975 (the Act).
The express object of Pt VII which is set out in s 60B(1) is “to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children”.
Under s 60B (2)(c) and (d), parenting after separation or divorce is seen as a shared legal responsibility. In the eyes of the law the parent who has less time with the child is no less important in his or her life. Moreover, s 60B(2)(a) and (b) expressly recognise the right of children (except when it is or would be contrary to their best interests) to know and to be cared for and have regular contact with both parents and significant others.
Section 65D(1) which is in Div (6) enables this Court, subject to the requirements of procedural fairness and other relevant provisions elsewhere in the Act, to make such parenting order as it thinks proper in that small minority of cases where parents, for one reason or another, are simply unable to reach agreement.
There are three relevant species of parenting orders. A residence order which determines the parent with whom the child is to live[1], a contact order defines contact between a child and another person or other persons[2], and a specific issues order which deals with any other aspect of parental responsibility for a child[3].
[1] s 64B(2)(a) & (3).
[2] s 64B(2)(b) & (4).
[3]s 64B(2)(d) & (6) : The relevant concept of “parental responsibility” including what it is and who has it is dealt with in Division 2.
Parental responsibility is defined by s 61B of the Act to mean:
“All the duties, powers, responsibilities and authority which, by law, parent have in relation to children”. [4]
[4]The definition deliberately omits any reference to parental rights. The term “duties” implies mandatory obligation and “powers” encompasses discretionary entitlements. Whether “responsibilities” and “authority” add anything of substance to the term “parental responsibility” is doubtful : A Dickey, Family Law, 4th ed, Law Book Co. (2002) at p 332.

Section 61C vests parental responsibility in each of the parents despite any changes in the nature of the relationships between them. This reflects the emphasis given to joint parental responsibility for the upbringing and development of children in Art. 18 of the UN Convention on the Rights of the Child in 1989.
The effect of s 61C is that in the absence of a specific issues order to the contrary, residence does not give a parent sole decision-making power for day to day matters[5] or take away any aspect of the non-resident parent's responsibility for the long term welfare of the child. It simply identifies the person with whom the children will live.
[5] s 64B(3).
Under s 61D(2) a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for that child except to the extent expressly stated and necessary to give effect to an order.
A specific issues order can be used to designate the parent who is to be responsible for controlling such specific matters as the child’s education, religion, and medical treatment. It can also cover broader aspects and confer responsibility on one or other (or both) of the parents (or another person) for the long term or day to day care, welfare and development of the child. It can convert the shared parental responsibility in s 61C into a joint or even sole obligation. The parent (or parents) with responsibility for long term issues is normally responsible for choosing the place where the child is to live, name and other matters of ongoing importance[6].
[6] See e.g. Martin and Matruglio (1999) FLC 92-876 at 86,411
The role of the court in making orders concerning children in the context of family breakdown is to ensure that residence and contact arrangements properly reflect the right of children to have and develop a meaningful relationship with both parents and that, as far as possible, each parent share and co-operatively discharge their parental responsibility.[7]
[7] s 60B(1).
It is not the proper function of the court to micro-manage every aspect of the post-separation relationship of two estranged parents who cannot agree about children's issues. The court intervenes as little as possible and only to the extent that the welfare or interests of the child requires it. It does its best to avoid needless interference with parental autonomy and responsibility.[8] However, conditions may be placed upon a residence parent as to where a subject child may reside in its best interests.[9]
[8]cf Lisa Young, who says: “The Family Court’s job is to decide disputes based on the evidence before it. It was not created to engineer parents’ daily lives – in ways unacceptable to them – so as (hopefully) to improve the lives of Australia’s children. This is the heart of the issue. The process of dispute resolution entrusted to the Family Court must be informed by the best interests of the child. It is an entirely different proposition to say that the Family Court must set about trying to secure what it considers are the best family arrangements possible for children. This is what those who advocate restrictions on movement are in essence arguing. And this is what the High Court is permitting: U v U: The High Court Reconsiders Relocation in the Family Court (2002) 6 University of Western Sydney Law Review 248 at p 251.
[9]Skeates-Udy and Skeates (1995) FLC 92-626; AMS and AIF (1999) 199 CLR 160 per Kirby J at 210.
Parenting orders must be complied with until they are formally varied by the court either by consent or further order and not just if the circumstances of the parties or those of the children or some other person change. Separated parents face heavy penalties if they break a parenting order or breach a statutory obligation.
The general obligations created respectively by residence and contact orders are dealt with in s 65M and the following section, 65N.
Neither a party or any other person can remove the subject child from the care of the resident parent; refuse or fail to return the child to that person; or otherwise interfere with the exercise of parental responsibility. Similarly, nobody is entitled to hinder or prevent court ordered contact between a child and his or her parent.
Although there is no precise statutory provision or binding authority on the point, the correct view seems to be that most contact orders create mutually and legally enforceable duties on both parties, with the resident parent being obliged to facilitate contact and encourage a close and continuing relationship between the child and the other parent.
It is an offence under s 65Y(1) for a party to concluded parenting proceedings, or any other person acting on his or her behalf, to take or send the child concerned out of the jurisdiction without the sanction of the Court or consent in writing of all other parties to the proceeding. The penalty for breach is up to 3 years imprisonment. The same applies where residence or contact proceedings are pending.[10]
[10] s 65Z(1) Div 6 Part VII of the Act.
The Act does not expressly deal with relocation in any discrete sense or as a special category. A residence parent seeking to relocate would normally seek an order modifying the existing contact arrangements to take account of the necessary changes as a result of the proposed move pursuant to the rule in Rice and Asplund.[11]
[11] (1979) FLC 90-725
However, applications to restrain a person from relocating with a child are often made pursuant to the provisions of s 67ZC which provides the general power of the Court to make orders relating to the welfare of children. This section could arguably also be used by a person seeking to relocate. Section 68B allows the Court to make such order or grant such injunction as it considers appropriate for the welfare of a child. Section 114(3) also provides the Court with an even wider power to grant injunctions in relation to children.
Regardless of how they are brought to court, relocation cases are governed by the provisions of Part VII in exactly the same way as any other matter relating to the parenting of children. [12]
[12] B and B: Law Reform Act 1995 (1997) FLC 92-755 at 84,176.
In determining a parenting case involving a proposal to relocate the residence of children either within Australia or overseas the court has to look at the considerations stated in s 68F(2) and elsewhere in the Act, including, in particular, sections 43(b) and (c), 60B(1) and (2), 61C and 61D, in coming to a decision about the matter. The aim and essential issue is always how to achieve the best interests for each child affected.[13]
[13] s 65E.
Beyond these statements of legal principle, however, lies the discretionary realm of uncertainty and unpredictability. Best interests are values, not facts, they are not susceptible to scientific demonstration or conclusive proof. The same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. There is not always only one right answer. Sometimes, the least worst situation may be the best available. Most cases are finely balanced with the only option being a choice between two or more imperfect alternatives. Predictions, perceptions, assumptions and even intuition and guesswork can all play a part in search of the best interests solution. [14]
[14] CDJ v VAJ (1998) 197 CLR 172 at 218
Relocation applications – especially those involving international destinations – are among the most difficult cases a Family Court judge has to deal with. People feel passionately about this vexed question. There are usually no easy answers and both sides of the argument often have compelling claims. A wrong decision can have serious long term consequences for all concerned. For these reasons, the parties are entitled to have their dispute resolved through litigation in a timely, principled, coherent and consistent way.
It has been said[15] that first instance judges, especially those under pressure in the family justice system, usually prefer to direct themselves by reference to guidelines laid down by the appellate courts rather than finding their own way through the reported cases. However, the Full Court of the Family Court of Australia last cut through the thicket of the law of international relocation nearly a decade ago in B and B: Family Law Reform Act 1995 [16]. The topic has been reconsidered by the High Court and the Full Court itself a number of times since then but, regrettably, without any real guidance or much practical assistance being given to the trial division. There have also been legislative changes and new developments, both here and overseas, in the inter- vening period. Accordingly, I am left with little choice but to conduct my own examin- ation of the relevant authorities, both foreign and domestic, and do the best I can to identify (a) the principles to be applied, (b) the approach to be taken, and (c) the factors to be considered in the search for the “best interests” outcome for these three children.

The Australian authorities [17]

[15] Re S (Removal from Jurisdiction) [2003] 2 FLR 1043 per Thorpe LJ

[16] (1997) FLC 92-755

[17]The paper presented by Anne-Marie Rice, Relocation Cases - An Australian Perspective, at the 10th National Family Law Conference, Melbourne, March 2002 greatly assisted me in writing this section. Any errors, of course, are mine.

In B and B: Family Law Reform Act 1995[18], the resident mother of two children aged nine and eleven brought proceedings to vary contact orders so that she could take the children from Cairns to live in Bendigo with her new partner.
[18] (1997) FLC 92-755 at 84,176.
The father opposed the application on the grounds that amendments to the Family Law Act placed a heavier emphasis on contact between children and the absent parent, and correspondingly restricted the freedom of movement of the resident parent which up to that point had been an almost absolute right.
He argued that the Reform Act placed an onus on a relocating primary carer to give a valid reason as to why the child or children's interests would be better served by moving than staying where they were.
It was also contended that the relocation cases decided before 1995 were no longer valid. Those cases concede the mobility within modern Australian society and recognise that, within that context, there may be various reasons why it may be necessary or desirable for a residence parent to move from one location to another and his or her right to do that provided that the best interests of the children were seen as the ultimate determinant[19].
[19] at 84,198.
The Full Court dismissed the father's appeal and rejected the notion that either party bore any persuasive (as distinct from evidentiary) onus. The Court identified the general right to freedom of movement exercisable by the parent who had the daily care of the subject child as a central theme[20] and recognised that the issue of maintaining contact becomes more acute where international relocation is contemplated but emphasised that the basic principles remain the same.[21] The Court reaffirmed that the basic enquiry in relocation disputes, as in other children's matters, remained focused on the best interests of the child. Those interests, the court held[22], are determined by having regard to both the object and principles in s 60B, together with those factors in s 68F(2) which appeared to be relevant.
[20]          ibid at 84,202
[21]          at 84,196
[22]          at 84,219-220.
Section 60B was said to be "important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the court is to apply in proceedings under Part VII . . . " but "does not purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests".
The Court confirmed the continuing relevance of pre-law reform decisions, such as Holmes and Holmes [23], noting that an inquiry into the bona fides of the application was a necessary first step in applying the paramountcy principle.
[23] (1988) FLC 91-918.
The concerns underlying that requirement were explained in Holmes as ensuring that resident parents do not misuse relocation as a means of frustrating contact. The court said:
"One often has cases where the conclusion to be drawn is that the desire to depart interstate or overseas is not bona fide but for the purpose of adversely affecting the other party by unjustifiably cutting him or her off from association with the children. Even more often the concern is that although the party may have a good reason to go interstate or overseas, once they have distanced themselves from the non-custodian they will not comply with the access orders and/or there will be difficulties in enforcing them". [24]
[24] at 76,660
The fact that the proposed move is genuine is, of course, not sufficient in itself.[25]
[25] B and B: Law Reform Act 1995 at 84,197; cf Payne v Payne [2001] 1 FLR 1052 per Thorpe LJ.
Their Honours acknowledged that moving house and changing environments away from neighbourhood friends, family members and familiar schools are a common and growing feature of contemporary life in Australia. Families routinely move, even during marriage, from one place to another. They do so for a range of purposes and not always willingly. It is sometimes unavoidable for financial reasons or necessary to start over. Transfers in employment are a common reason. So, too, is lifestyle or remarriage[26]. Irrespective of the cause, all members of the family, no doubt some more reluctantly than others, have to adjust and learn to cope as best they can.
[26]Some of the common reasons given for relocation were mentioned at pars 7.12 – 7.16, such as advances in employment with resultant economic benefits for both the parent and children, re-marriage or re-partnering, reunion with family or country of origin, health issues and to escape violence or abuse.
The Court discussed the difficulty human beings have with change and their natural preference for the security of familiar and existing circumstances. However, common experience is that after a period of disruption and adjustment the lives of children ". . . are often advanced, even enriched, by . . . changes"[27].
[27] B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at para. [43].
The Court observed that the interests of the children might be beneficially affected by relocation in two broad ways. Firstly, the move may improve the lifestyle of the family unit in a direct way. Secondly, in some cases it will relieve significant pressures upon the resident parent and increase his or her capacity to cope and thereby enhance the children's quality of life.
A very important aspect of a child's best interests, their Honours observed, is to live in a happy home environment. That, the Court noted, may be significantly impacted upon where the resident parent is required to live in circumstances which tend to diminish his or her long term future in either an economic or social sense.
Obvious negatives for children living with a relocating parent include, disruption to schooling and sporting activities, loss of established friendships and close neighbourhood ties, reduced contact with the other parent and, perhaps, members of the extended family on both sides.
The Full Bench specifically discarded the contention that the freedom of movement and the right of a woman having the role of a primary carer to equal treatment without discrimination before the law under international instruments or their legitimate interest in improving their generally poorer economic and social positions following separation and divorce, might take precedence over the best interests of the child.
Their Honours made it clear[28] that conditions may be placed on a resident parent concerning where he or she may live where this is in the best interests of the child, and that where the freedom of the parent to move impinges upon or is inconsistent with the best interests of the child or children, the former must give way to the later.
[28] at 84,222
After referring to leading authorities from New Zealand, the United Kingdom and Canada, the appellate division identified some of the matters normally arising for consideration in relocation cases as including, in addition to the bona fides of the application:
-the residence parent's freedom of movement and his or her prima facie right to choose where to live;
-the resident's parent's ability to function effectively; [29]
[29]          Craven and Craven (1976) FLC 90-049 at 75,042.
-the extent to which the child or children's welfare will be affected, adversely or beneficially, if the resident parent's movements are restricted;
-whether undue interference by the court with the way of life the resident parent legitimately proposes to adopt will give rise to frustration and bitterness to the detriment of the child or children; [30]
-relevant economic factors and the unequal position of women, and the extent to which they are dependent on social security or a former spouse; [31]
-the question of the importance to the children remaining with the resident parent in relocated circumstances, weighed against the changes to the children's environment, and more particularly against any loss of or reduction in contact with the contact parent, having regard to the degree and quality of the existing relationship with both parents and the contact history;[32]
-            the reasons for relocating; [33]
-the effect on the child, both positive and negative, of the proposed relocation;
-the distance and permanency of the proposed change;
-dislocation from other aspects of the children's former environment, such as schools, friends and extended family;
-the age and wishes of the children;
-the feasibility and costs of travel and adequacy of alternative forms of contact.[34]
[30]          Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023.
[31]          I and I (1995) FLC 92-604 at 82,028.
[32]Notably, in its examination of s 60B(2)(b) and the significance of the recognised right of a child or children to have "contact, on a regular basis, with both their parents", the court held[32] that "regular" in this context meant "as frequently as is appropriate".
[33]It is important to note, however, that the genuineness or validity of the relocating parent's reasons has limited significance in light of the High Court's 1999 decision in AMS and AIF.
[34]          at 84,222.
The Full Court stated that as a matter of proper practice and to ensure that the essential task is performed, judges adjudicating a relocation case would be expected in the judgment to identify s 65E as the paramount consideration, and then identify and consider each of the paragraphs in s 68F which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear to be relevant or which may guide the overall exercise. The adjudicating judge should then, the Court said, evaluate all the relevant issues in order to reach a conclusion which is in the child’s best interests.
No presumption applies either way because, their Honours held, such devices have the potential to impair the search for the best interests solution.
The High Court had its first opportunity to consider relocation issues two years later in AMS and AIF [35]. The proposed move there, as in B and B, was within Australia rather than overseas. The residence mother sought to relocate with the parties' child from Perth to Darwin.
[35] (1999) 199 CLR 160.

The court delivered four separate judgments and by a six : one majority (Callinan J dissenting) allowed the mother's appeal against the initial refusal of her application on the ground that her reasons for moving had more to do with her own happiness than the welfare of the child and were not sufficiently compelling to alter the "ideal situation" in Perth.
The matter was remitted for rehearing with the majority emphasising the need not to impose any impediment upon the freedom of interstate movement of either party greater than that reasonably required to achieve the objects of the legislation. [36]
[36] at 180.
The trial judge asked firstly who should have residence and, having decided in favour of the mother, turned to the resulting question of whether or not she should be permitted to relocate, and answered that question by reference to three main factors :
(1) Was the application a bona fide one?
(2)Is the mother likely to comply with contact orders and maintain the relationship between the child and the non-contact parent?; and
(3)What was the overall effect on the welfare of the child of granting or refusing the application?
In other words, he applied the three tiered test laid down in Holmes' Case and approved in B and B.
This was found by Gaudron J to be a fundamental error [37] amounting to a complete failure to determine the issues because it required the mother to justify her proposal to move but not the father's decision to stay put and meant that the mother's case that she should have residence regardless of her place of residence was simply not dealt with[38]. Kirby J [39]   (with whom Gleeson CJ, McHugh and Gummow JJ concurred) and Hayne J [40] agreed.
[37]          at 191.
[38]          at 192.
[39]          at 223.
[40]          at 231 - 232.
Dissecting the issue into two discrete questions obscured the real issue which was, of course, should the child live with the relocating parent in their proposed location or with the other parent in their proposed location?[41].
[41] at 210.
The majority of the High Court held that the most appropriate approach was to compare and contrast the parties' competing proposals and weigh one against the other with a view to determining which of them best promotes the overall interests of the child concerned. And in the case of interstate moves, at least, alternative contact options should be more fully explored.
Gaudron J found that the mother's case was one which permitted only two possible outcomes. The first was that she should have custody regardless of where she lived. The second was that she should have custody only for as long as she resided in Perth. Each of those possibilities had to be assessed against the alternative for which the father contended, namely, that the child live with him. A decision then had to be made as to which of those possibilities was preferable, the welfare of the child being the paramount but not the only consideration to which regard was to be had in making that decision.[42]
[42] at 191 - 192.
Kirby J held[43] that requiring a resident mother to demonstrate compelling reasons to relocate was not warranted by the paramountcy principle or the practicalities affecting parents. His Honour made the salient point that parents enjoy as much freedom as is compatible with their obligations with regard to the child.[44]
[43] at 224.
[44] at 209.
His Honour went on to say that, even where the proposal is made to remove the child to another country, it will not necessarily be restrained, despite the inevitable implications for the child's contact with the other parent.[45]
[45] at 210.
In such a case proof that the resident parent had " . . . remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration"[46] may suffice (emphasis added) to convince the court that the best interests of the child favour continuance of the residence arrangement in another jurisdiction but with different orders as to contact.
[46] id.
His Honour recognised that relocation cases have long presented special problems for judicial decision makers in parenting cases in Australia. He noted that two features of modern Australian society had added to the number, variety and urgency of relocation decisions[47].
[47] at 206.
The first is that, overwhelmingly, of single parent families, the mother is the resident parent in approximately 84 per cent of cases. Accordingly, in practical terms, court orders restraining movement of the resident parent ordinarily exert inhibitions on the freedom of movement of women not men. The other feature is the very large proportion of the population born overseas with family links to which a party to the marriage or relationship which has broken down may understandably want to return with the child.
His Honour acknowledged that relocation cases are hard to decide because they involve conflicting values and interests, such as, for example, the child's right to know and have regular contact with each parent, and the "high measure of freedom of movement" enjoyed by members of society, including those with the responsibilities of parenthood".
Thus, because most primary carers were in fact women, an approach which required the primary carer to justify their move would adversely affect the right of women disproportionately to men.
Kirby J suggested that the following principles should be applied when resolving the conflicting interests of the parents and children in a so called relocation case:
Firstly, each case depends on the applicable legislation and its own facts. Secondly, no single factor is decisive. The paramount consideration is the child's best interests, but this is not the same as the "sole" or "only" consideration. The relevance of the list of best interests factors will depend on the circumstances of the particular case. Pre-conceived notions as to the weight which must be given to particular factors are incompatible with individual justice.
Thirdly, the legitimate interests and desires of the parents are not to be ignored but, in the case of conflict, the child's welfare and rights have priority and must prevail.[48]
[48] at 207.
Fourthly, freedom of movement and the right of adults to decide where they live are highly important social values which are not to be interfered with lightly, especially where the relocating parent is the established and unchallenged primary carer of the children and has a proven record of meeting their needs and her responsibilities in performing that role.
His Honour made it clear that, while the child's welfare and best interests have the highest ultimate priority, they do not expel every other relevant interest from being given its due weight.[49]
[49] at 208.
Bitterness towards the former spouse or partner generated by unwarranted interference in the resident parent's life may be transmitted to the child or otherwise impinge on the happiness of the resident parent in a way likely to affect the welfare or best interests of the child. That said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. Holmes and Holmes [50] and B and B [51] must be disregarded to the extent that they suggested otherwise.
[50] at 76,664.
[51] at 84,197.
Fifthly, the principles in s 60B do not lay down an absolute rule in relation to the rights of children to maintain personal relations and direct contact with both parents. The court should take account of the anomalous effects of the enforcement of this right on women and account needs to be taken of whether a resident mother is unfairly disadvantaged or prejudiced by being effectively immobilised.[52]
[52] at 209.
There is no universal rule that the resident parent (usually the mother) is obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact.[53] His Honour observed that one of the objects of modern family law statutes, including the Family Law Act, 1975, is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships free from unnecessary interference from a former spouse or partner or from a court. [54]
[53] at 208.
[54] at 208
However, there is no presumptive deference in favour of the right of the resident parent to live where she or he decides unless there is a good welfare based reason to the contrary.[55]
[55]cf the majority and minority decisions in the Canadian decision of Gordon v Goertz (1996) 134 DLR (4th) 231 at 338-340 per McLachlan J and at 370-371 per L'Heureux-Dubé.
Sixthly, a more relaxed attitude should be adopted to relocation within Australia than overseas because of the ready availability of reliable transport and telecommunications, social and cultural factors and the relative safety of Australia compared to other parts of the world. But, even in international relocation cases, the balance of the best interest factors may favour continuance of the residence arrangements in another jurisdiction, with different orders as to contact where, despite the inevitable implications for the relationship between the child and the other parent, the non-resident parent has '. . . remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration . . . '.[56]
[56] at 210.
Seventhly, conditions may be placed upon a resident parent as to where the child may reside according to its best interests. [57] Equally, disturbing established residence arrangements with the collateral effect of altering an existing contact regime, the parent seeking the change must demonstrate that the proposed new arrangement is for the welfare or the best interests of the child.[58] This includes any adjustment to existing contact orders, such as less frequent but longer block holiday periods as opposed to regular but shorter contact at other times.
[57] Skeates-Udy and Skeates (1995) FLC 92,626.
[58]The way this is expressed, however, is suggestive of the onus on a relocating resident parent expressly rejected by the Full Court in B and B: Family Law Reform Act 1995 at 84,220.
Eighthly, the practicality of sharing parental responsibility as a norm under s 61C may have to be reviewed.[59]
[59]This betrays a recognition of the tension between mobility rights and the provisions of s 61C as well as s 60B
And ninthly, a large element of judgment, discretion and intuition is involved in making decisions and appellate courts should not be overly critical or pernickety in analysing the underlying reasons of the primary judge.
Hayne J held that the issues for decision depended on the orders sought by the parties which was not an order directed to regulating where the mother was to live. It was an order regulating who would have custody of, and access to, the child, and on what terms. [60]
[60] at 231.
An important, probably essential, step in the enquiry into who should have residence of and contact with the child, according to his Honour, is to identify where the residence parent intends to live for that will affect what level of contact the child can have with the other. But that is not to say that it is for the court to decide where the custodial parent may live: that decision is to be made by the parent. [61]
[61] id.
Similarly, the fact that the mother would rather stay in Perth than move to Darwin if having residence of the child depended on it, does not mean that the question for the court is whether she should be "permitted" to move to Darwin.[62]
[62] id.
Rather, the proper focus is which is better for the child - to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin)? [63] That, according to Hayne J, requires attention to what benefits will the child have, and what detriments will the child suffer from being in the mother's custody in Darwin. If the mother had wished to move to marry and establish a new family in Darwin, or to take up a new and better employment or training there, it may have been possible to conclude that in all the circumstances the child's welfare would be advanced by his being committed to the mother's custody.
[63] at 232.
His Honour said that the circumstances to be considered include, not only the fact of relocation, but also all the consequences that would follow - separation from the non-custodial parent, the creation of a new family in which the child would thereafter live (with all the concomitant advantages and disadvantages), the better economic position of the custodial parent, and so on.
In that sense, inquiring about why the mother wished to move was relevant, but it was only one inquiry among the many that go into deciding the ultimate question. The inquiries are all directed to ascertaining what is in the best interests of the child.
Hayne J noted that the mother's attitude – “I will go unless I cannot have custody” –added to the complexity and difficulties of the enquiry because, when a parent's intention to move is conditional on residence, there are then three competing possibilities for consideration.[64]
[64] id.
In those circumstances, to focus on the reasons for the mother's wishing to move may have wrongly reduced the enquiry to two competing possibilities (of the mother having custody in Darwin or in Perth) but, more importantly, it turned it into an investigation about whether the mother should be permitted to move (if her reasons for doing so were good enough), which (wrongly) diverted attention away from what would promote the welfare of the child. [65]
[65] id.
The Full Family Court considered the implications of the decision in AMS and AIF in the context of an international move from Perth to Hungary in Paskandy and Paskandy. [66] The parties in that case were both Hungarian citizens. The father immigrated to Australia in 1980 and the mother in 1995. The only child of the marriage was less than a year old at the date of separation in 1997. The mother, as interim resident parent, applied for liberty to remove the child permanently to Hungary.
[66] (1999) FLC 92-878.
The trial judge refused her application. He found that the mother had no interest whatsoever in fostering a relationship between the father and child and had no strong attachment to Hungary. His Honour concluded that, despite assurances to the contrary, the mother would not facilitate contact if allowed to take the child to Hungary.
His Honour observed that the child, being male, needed a countervailing male influence in his life, which could best be provided by his natural father. He also thought that the child would benefit from a continuing relationship with his older half-sibling in Australia. The father's input to matters concerning the long term welfare of the child was also regarded as an important consideration.
The Full Court upheld the mother's appeal, finding that the trial judge had implicitly - and impermissibly - adopted a methodology akin to the compelling reasons approach rejected by the majority of the High Court in AMS and AIF. Their Honour’s did not accept the contact father's argument that the principles enunciated by Kirby J in AMS should be restricted to cases where (a) the child is old enough to remember the contact parent if contact decreased or ceased altogether; or (b) contact is likely to be promoted by the resident parent or the financial position of the parents does not, as a matter of practice, preclude contact should the resident parent relocate. [67]
[67] at 86,456.

Instead, the Court held [68]:
" . . . The child's right to maintain personal relations and direct contact with each parent is a proper matter to be considered but . . . is not the sole consideration . . . In deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's right to regular contact with the parent no longer living permanently in close proximity. If the court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent it may be necessary for the court to order a regime which would best meet the right of the child to know and have physical contact with both its parents".
[68] at 86,457.
Paskandy adheres to the High Court’s approach in AMS generally and, in particular, affirms the proposition that a trial judge must not separate the issue of relocation from that of residence or the best interests of the child or children.
In Martin and Matruglio [69], the resident mother of two children aged ten and six wanted to relocate with her new partner to Sydney from Canberra. The father sought an injunction on the grounds that he had a strong and close relationship with both sons which would be needlessly damaged by relocation.
[69] (1999) FLC 92-876.
The mother's case was that living in Sydney would enable her to (a) reside with her partner and create a new life in another city; (b) spend more time with her dying father; and (c) benefit herself by improved employment prospects and give the boys a better education.
The trial judge found that the relocation was not "imperative" and would inevitably diminish the relationship between the children and their father.
The Full Court allowed the mother's appeal and remitted the matter for rehearing because of the apparent over-emphasis placed on the mother's reasons for moving at trial.
The joint judgment makes it plain that the reasons and genuineness of motives for relocating were likely to be relevant considerations, but faced with the views expressed by Kirby and Hayne JJ in AMS and AIF, suggested that it may not be appropriate to examine the state of mind of the relocating parent "to any significant degree”.
Their Honours said :
"Once it becomes apparent that such a move is bona fide the only other basis on which it may be appropriate to examine the reasons for the move would be to ascertain the likely effect upon the residence parent and/or the child if the move was unable to take place".[70]
[70] at 86,408.
The Full Court[71] held that instead of looking for good or cogent reasons for why the resident parent ought be allowed to relocate the trial judge should have assessed how the best interests of the children would be advanced, taking into account the right of the wife to move, the economic, social and emotional detriment she would suffer were she not allowed to move and its concomitant effect upon the children, and then balancing those against the deterioration (if any) in the relationship the children would suffer by reason of moving from Canberra to Sydney. [72]
[71] at 86,411.
[72]In her essay Relocation Cases - An Australian Perspective, op. cit. at p 17, Anne-Marie Rice argues that in practice this would probably offend the High Court's injunction in AMS and AIF against separating the issues of residence and relocation and conducting an enquiry about whether the mother should be permitted to move instead of focusing on the children's best interests.
Twelve months later, the Full Court issued suggested guidelines for determining parenting cases where one party proposes to relocate with a child or children in its reasons for judgment in A and A: Relocation Approach [73]. The decision drew on the various statements of principle made by its own earlier decision in B and B: Family Law Reform Act1995 and the High Court decision in AMS and AIF.
[73] (2000) FLC 93-035.

The parties were married in 1990 and separated in 1994. Their only child was nine at trial. The mother's daughter from a previous marriage resided with her father in Portugal. The father had enjoyed regular defined access under 1995 orders.
The mother terminated contact in 1999 on the basis of alleged "inappropriate" behaviour by the father and applied to relocate to Portugal. She failed and appealed on various grounds, including that the trial judge had failed to adhere to the AMS and AIF approach.

The Full Court (Nicholson CJ, Ellis and Coleman JJ) noted at the outset that there was a narrow ratio decidendi regarding the relocation aspect to be found in the four separate judgments delivered in AMS and AIF, and because there were matters on which there was no express agreement by a majority of members of the High Court bench the statements adopted in the subsequent Full Court decisions of Paskandy, and Martin and Matruglio were strictly obiter.
The trial judge was found to have erred by failing to properly evaluate the three rival proposals and giving insufficient consideration to s 60B and 68F(2) matters, as well as implicitly requiring the mother to discharge a non-existent onus to justify relocation.
The Full Court set out the preferred method to be adopted in resolving interstate and international relocation cases as follows:
-       the welfare or best interests of the child or children remains the paramount but not the sole consideration[74]
[74]          This is a binding principle of law established by the majority of the High Court in AMS and AIF.
-       a court cannot require the applicant to demonstrate 'compelling' or 'valid' reasons for the relocation contrary to the proposition that the welfare of the child would be better promoted by the status quo.[75]
[75] So too is this.
-       it is necessary for a court to evaluate each of the proposals advanced by the parties[76].
[76]          The Full Court in Paskandy expressly adopted this starting point in view of the remarks of Gaudron J
(at 190), Kirby J (at 226), and Hayne J (at 231-232) in AMS and AIF.
-       a court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and the further or separate issue as to
whether the relocation should be 'permitted'.[77]
[77]This was the formulation expressed in Paskandy. The proper nature of the enquiry is described by Hayne J in AMS and AIF.
Notably, their Honours distanced themselves from the majority judgment in Martin and Matruglio, to the extent that it is inconsistent with Hayne J’s formulation, and par 46 of Paskandy. The Court reiterated the need to identify and evaluate the competing proposals and to undertake the systematic examination of them even in a case where it is common ground that the parent proposing the relocation of the child should be the residence parent and it is only the issue of relocation that is in dispute. There was, however, that no competing residence issue in Martin and Matruglio because the mother was the unchallenged resident parent.
-       The evaluation of the competing proposals properly identified must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.[78]
[78]          This accords with Hayne J’s treatment of the issue to be determined in AMS and AIF.
- It is necessary to follow the legislative direction espoused in ss 60B and 68F of the Family Law Act, 1975. The wording of s 68F(2) makes clear that the court must consider the various matters set out in (a) - (l) of that subsection.[79]
[79]          This guideline was drawn from the earlier decision in Paskandy at 86,456 par 52.
- The object and principles of s 60B provide guidance to a court's obligation to consider the matters in s 68F(2) that arise in the context of the particular case.
-       It is to be expected that reasons for decisions will display three stages of analysis and:
1.the court will identify the relevant competing proposals;
2.for each relevant s 68F factor a court will set out the relevant evidence in the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for the factor and make findings on each factor as the court thinks fit having regard to s 60B;
-as one, but only one of the matters concerned under s 68F(2), the reasons for the proposed relocation as they bear upon the child’s best interests will be weighed with the other matters that are raised in a case, rather than treated as a separate issue. The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges on those interests it must give way.[80]
[80]The Court acknowledged that par [9.63] of B and B: Family Law Reform Act 1995, is no longer an accurate statement of the law in light of AMS and AIF. It is beyond doubt that the party advancing the relocation proposal is not required to demonstrate “compelling reasons” (save perhaps for where the new location is found to present dangers to the safety of the child – Kirby J at 224-225, par [191]).
The reasons for the proposed relocation should only feature in the trial and in the judgment to the extent of their impact, if any, upon the child’s best interests and the appropriate point at which to consider disputed facts and arguments as to the reasons for the proposed relocation lies in s 68F(2)(1) unless they are seen by the court as otherwise relevant.
Thus, the motivations for the proposed relocation are one, but only one, best interests consideration under s 68F(2) to be weighed with the other matters raised in the case rather than treated as a separate issue.
-Even where the proposal is made to remove the child to another country courts will not necessarily restrain such moves despite the inevitable implications they have for the child's contact with and access to the other parent.[81]
[81]          This statement comes from B and B:Family Law Reform Act 1995, par [9.65] and the observations of
Kirby J in AMS v AIF at 224, par [191].
3.on the basis of the prior steps of analysis determine and explain why one of the proposals is to be preferred having regard to the principle that the child's best interests are the paramount but not sole consideration".[82]
[82]          This was the approach suggested by Kirby J in AMS v AIF at 209-210 par [147].
-       The process of evaluating the proposals must have regard to the following issues:
(a)Neither the applicant nor the respondent bear the onus to establish that a proposed change or continuation of an existing situation will
best promote the best interests of the child[83]. That decision must be made having regard to the whole of the relevant evidence.
(b)The importance of a party's right to freedom of movement.
Orders must be congruent with the parties' constitutional rights, where applicable[84].
The arrangement that each parent proposes for the child to maintain contact with the other must be considered and, if necessary, the court should devise a regime which would adequately fulfil the child's' rights to regular contact with a parent no longer living permanently in close physical proximity and to meet the right of the child to know and have physical contact with both its parents
(c)     Matters of weight to be explained.[85]
A Court must consider all relevant matters referred to in ss 60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters (emphasis added) balance out.
No single factor should determine the issue of which proposal is referred by a Court[86].
[83]The Full Court saw an apparent inconsistency between the comments made by Kirby J in AMS v AIF in his seventh principle (at 208) and interpreted those comments as saying no more than that a party proposing to relocate the residence of a child must present his or her case with a focus on the impact such a move will have on the best interests of the child.
If, however, Kirby J was suggesting that there is an onus on the party proposing relocation, the court respectfully disagreed and preferred not to adopt his view as to there being an onus on the parent proposing the relocation, adopting instead the no onus position in B and B: Family Law Reform Act 1995.
[84]          This was adopted from the decision in Paskandy.
[85]This comes from AMS and AIF per Kirby J at 207, par [143], and the requirement to provide reasons that those matters in ss 60B and 68F(2), to which greatest significance is attached and how those matters balance out should be indicated.
[86]         Paskandy at 86,457 at par [65].
In summary, the Full Court in A and A spelt out the stages and level of analysis it expected a decision on relocation to encompass. The first stage involves identifying the relevant competing proposals of the parties; the second requires dealing with the evidence and submissions in relation to each statutory 'best interests' factor; and the third demands a determination and explanation of which proposal is to be preferred 'having regard to the principle that the child's best interests are the paramount but not sole consideration'.
In U v U[87], the most recent and leading High Court of Australia authority on the subject, the mother made an application for permission to take her daughter to India, and the father had made a cross-application for a parenting order under s 64B(2) for the child to live with him in Australia or, alternatively, with the mother in Australia. Both parents were originally from India. The mother had family there and her economic future, she argued, would be enhanced by the move.
[87] (2002) 211 CLR 238; (2002) FLC 93-112. See generally L Young, U and U:The High Court
Reconsiders Relocation in the Family Court (2002) 6 University of Western Sydney Law Review 241. J Roebuck U and U; A Chauvinistic Approach to Relocation? (2003) 17 Australian Journal of Family Law 208; J Behrens U v U:The High Court on Relocation [2003] Melbourne University Law Review 20.
The mother, who was highly intelligent, well educated and a qualified import broker, stopped work just before the birth and subsequently found it difficult to re-enter the workforce, except at casual clerical level.
The mother had very few friends, family or other support in Australia and was extremely unhappy living here. India was a completely different proposition. She had accommodation there with her mother, who was very financially secure, and much better employment prospects. She had a strong network of family and friends, including the father's extended family.
The mother abducted the child to India on separation in 1995. Consent orders were made in Bombay for the child to reside with the mother and have regular contact with the father. He travelled to India five times in the four years between 1995 and 1998. The mother and child returned to Australia in 1998 to unsuccessfully attempt reconciliation. She became stuck in this country because the father had taken the precaution of placing the child's name on the airport watch list.
The mother applied for residence on the basis that she would live in India with the child. She proposed unlimited, though supervised, contact in India and two months of uninterrupted contact a year in Australia. She offered to pay half the travel costs and receive reduced child support in lieu. By the time the matter came on for final hearing the mother had amended the contact proposal to two visits by the father to India each year and two visits by the child to the father in Australia annually.
The father cross-applied seeking residence of the child with specified contact to the mother or, alternatively, if the mother was granted residence of the child she be restrained from leaving the Sydney – Wollongong area of New South Wales.
The High Court’s decision in AMS and AIF was delivered shortly before the commencement of the trial.
At the hearing, the father conceded that it would be best for the child to live with the mother. However, in response to a question put to her during cross-examination, the mother conceded that if she was not allowed to relocate to India with the child she would reluctantly stay in Australia. This concession was then mistakenly treated by the trial judge as an alternative proposal by the mother of residence with her in Australia. This was the one he ultimately favoured as being in the child's best interests.[88]
[88] It also accorded substantially with the status quo and the interests of the father.
O’Ryan J found that the child had a stronger bond with the mother than the father and that she was the established primary carer. He accepted that the mother's unhappiness and isolation in Australia would have a negative impact on her capacity to cope and probably reduce the general quality of life in her home. This was not a case where the proposal to relocate was motivated by spite or out of a desire to harm the other parent, but his Honour was sceptical about the mother's commitment to complying with contact orders and encouraging a meaningful relationship between the father and the child.[89]
[89]According to Barbara Anne Hocking and Scott Guy, Contemporary Issues in Australian Family Law: Do We Need a More Unified and Interventionist Judicial Model? (2004) Singapore Journal of Legal Studies 76 at 88 [89] :
"The logic behind the decision (of O'Ryan J) is consistent with that which was held to be erroneous in AMS v AIF, namely that where the existing parenting arrangement between the parents enables the child to have liberal contact with each parent and where in the circumstances that is in the best interests of the child, the court will choose not to disturb the status quo".
The Full Court held that a misunderstanding by the Judge of the counsellor's opinion concerning the level of contact was insufficient to vitiate an otherwise “unimpeachable” judgment.
The mother appealed to the High Court on six grounds but the outcome really turned on the merits of the first viz., that his Honour had addressed the ultimate issue of whether the mother should be "permitted" to move the child from Australia instead of properly evaluating her proposal of living in India. This, she argued, ignored her human right to freedom of movement and effectively confined her to living in a place she did not like, for the convenience of the father, who was not interested enough in maintaining contact with the child to offer to move to India. In short, it was claimed that O’Ryan J had failed to properly identify and give consideration to the case of each of the parties. Instead, his Honour made an order which was quite different from the proposals of each of the parties.
The mother also placed heavy reliance on the recently published English Court of Appeal decision in Payne v Payne[90] that the primary judge and the Full Court failed to recognise and guard against the dangers of underestimating the impact upon a child of a refusal by a court to make an order allowing a parent who wishes to do so to relocate.
[90] [2001] 1 FLR 1052
Payne was decided in February 2001; that is, after both A and A: Relocation Approach and AMS and AIF. It was not published when the decisions of the primary judge and the Full Court in U v U were delivered.
The High Court dismissed the appeal 5:2. The majority decision is found in the joint reasons of Gummow and Callinan JJ, with which Gleeson CJ, Hayne J and McHugh J all agreed.[91] Hayne J expressed some additional views with which Gleeson CJ and McHugh J also adopted.
[91] Gleeson CJ, McHugh and Gummow JJ had concurred with Kirby J in AMS in finding that the trial
judge there had mistakenly required the mother to present "compelling reasons" before being permitted to relocate.
In the majority's view, the trial judge was faced with a finely balanced case. He was not bound by any of the proposals put forward by the parties and was perfectly entitled - and perhaps even obliged - to devise a better option from the evidence – including the mother's concession in cross-examination. Consequently, the majority felt that the first ground of appeal had an "air of artificiality" about it and found that it was not made out because the trial judge had not applied a "compelling reasons" test but had, on the contrary, properly addressed his mind to the over-arching question of the best interests of the child.
Their Honours considered that whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child, if that were to be adversely affected by the movement of the parent.
In dealing with the Payne ground, Gummow and Callinan JJ acknowledged the desirability of a child being brought up in a "stress free" environment, but this was still only one of a multiplicity of considerations to be weighed in parenting cases and O’Ryan J had done that.
Of the three stage process which the Full Court of the Family Court mandated by the Family Law Act in A and A, their Honours said:
“We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the court is obliged or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the court is not, on any view, bound by the proposals of the parties. . . . The object is always to achieve the child's best interests".[92]
[92] at 260; 89,094. Apart from casting doubt on the Full Court’s attempt to indicate a clear approach to
these cases and to give guidance to trial judges, the High Court provided little with which to replace it, a failure which Juliette Behrens says continues a trend in decision-making in family law matters by the High Court: op cit, at p 23.
In strong dissents, Gaudron and Kirby JJ, gave separate reasons for upholding the mother’s first ground of appeal.
Gaudron J accepted that there were three proposals for parenting arrangements to be considered: the mother's proposal to live in India, the father's main proposal that the child live with him in Australia, and his alternative proposal (wrongly identified at trial as the mother's alternative proposal) that the child live with her mother in Australia.
Her Honour held that all three proposals had to be separately evaluated and a choice made between them or a modified version of one or other of them. She also made it plain that the court ought to have considered the possibility that the father relocate himself in order to fulfil the child's right to contact. The failure by the trial judge to explore that possibility in this case, particularly given the father's origins, professional qualifications (an accountant), and family links in India, seemed to Her Honour to be “…explicable only on the basis of an assumption, inherently sexist, that the father's choice as to where he lives is beyond challenge in a way that a mother's is not".[93]
[93] at 254; 89,081.
Gaudron J noted, with regret, that:
" . . . stereo-typical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve."[94]
[94] at 248-249; 89,082.

[243] This much is clear AMS v AIF at 206. Moreover, s 60B(2)(b) does not even use the word ‘direct’ in
relation to contact. cf par (d) of s 68F(2), however, which does.
While it is true that the paramountcy principle cannot be applied in a vacuum or ‘viewed in the abstract separated from the circumstances of the parent with whom the child resides’ or is to reside,[244] the ‘best interests’ test in Australia is not quite the same as the English ‘welfare’ standard. Nor is it as flexible and pragmatic as its English counterpart appears to be. Unlike the position in England, the wants, needs and well-being of the primary carer or resident parent are not to be given a priori benefit at the expense of a continuing relationship and regular contact with both parents. Nor does it tolerate the inconsistency between the importance of contact in purely domestic settings compared with the apparent willingness to accept drastic reductions or, in many cases, the complete loss of contact in the context of applications by residence parents to leave the jurisdiction.
[244] AMS v AIF (1999) 199 CLR 160 per Kirby J at 208-9.

It is simply not possible in a practical sense for a non-residence parent living on the other side of the world to discharge his or her s 61C parental responsibility in the way envisaged by the law or to achieve the objects of s 60B(1) [245] or to satisfy any of the principles underlying them. Kirby J apparently recognised this in AMS v AIF [246] when he alluded to the courts’ discretionary power to depart - where necessary - from the “modern norm” of
[245]Although parental responsibility for an Australian born child continues to apply despite a change in his or her habitual residence, its exercise is governed by the law applying in the country of the new habitual residence - in this case New Zealand. See : s 111 CS(5)(a) and (c), Family Law Act, 1975.
[246]        at 210-211.
shared parental responsibility in relocation cases.[247] The exercise of the discretion, however, has to be consistent with the paramountcy principle and the fundamental objects of Australian family law which, among other things, is to ensure that separated parents fulfil their parental responsibility cooperatively and shoulder their fair share of the burden of bringing up the children they helped bring into the world. Admittedly, a degree of common sense must be brought to bear in such cases. So too must the realities of separation or divorce. The nature and strength of the pre-separation relationship between a child and his or her non-resident parent cannot be preserved like apricots in a jar. As the Full Court pointed out in B and B: Law Reform Act 1995, relocations are sometimes unavoidable or desirable for a range of reasons, including economic, employment, lifestyle or remarriage. It is a growing feature of contemporary Australian life. And there is no universal rule requiring the residence parent (usually the mother) to reside in close geographical proximity to the contact parent (usually the father) for the purpose of facilitating direct regular contact.
[247]The provisions of the new Family Law Amendment (Shared Parental Responsibility) Bill 2005, which was tabled in the House of Representatives on 17 December 2005, are worth mentioning in this context :
The proposed changes are likely to become law when parliament resumes next month. They include compelling the Family Court to consider whether children embroiled in parenting disputes should spend equal time with both their mother and father. And there will be a presumption that parents will have equal responsibility for rearing their children.
The Bill introduces, for example, s 68F(2)(ba) – the so-called ‘friendly parent’ criterion – to the effect that the court must consider ‘[t]he willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent’. Section 61DA(1) of the Bill will require this court to apply a rebuttable presumption when making a parenting order that it is in the best interests of the child for his or her parents to have joint parental responsibility. While the presumption does not apply where there are contra indicators, such as family violence or abuse, it would have the practical effect of making separated parents to make joint decisions about major long term issues in relation to their children, including the location of the residence in which the child usually lives. Moreover, s 65DAA provides that the court must consider making an order that the child spend substantial time with each parent with joint parental responsibility where both wish to spend substantial time with the child and it is reasonably practicable for this to occur.
However, appropriate recognition needs to be given to the fact that migration overseas will change the way in which parents share in their children’s lives as a result.[248] The ability of a child to adjust and learn to cope with sole parenting does not mean that it is in his or her overall best interests to impose it by granting a relocation request.
[248]        cf . D & SV (2003) FLC 93-137 at 78,282
Nonetheless, rigidity or preconception as to the relative importance of s 60B and s 61C is just as incompatible with individual justice as attaching to higher importance to freedom of movement and the right of adults to decide where they will live.
The child’s right to contact and the parent’s right to freedom of movement may not necessarily be at odds. The s 60B rights and the idea of post-separation parental responsibility in s 61C are capable of being (but will not always be) upheld otherwise than via frequent face to face contact.
Alternative arrangements, including the possibility of the contact parent relocating, should therefore be seriously considered. The essential question in relation to both comes down to whether, in the light of the practical consequences of a fundamental change in the nature and overall reduction in the quantum and quality of contact with the non-residence parent, the proposal advanced by the relocating parent for substituted parenting arrangements and contact is acceptable or not having regard to the policy of the Act and the child’s best interests, especially his or her ongoing emotional and developmental needs. There is no objection in principle, as acknowledged by Gaudron J in U v U, to a finding that frequent contact with both parents was more important than any other best interest consideration. It all depends on the factual context and result of the evaluation process.

-There is no room for any gender based assumption about whose parental care will best serve the welfare of the child.
The suggested ‘preferred’ role of the mother has long been rejected as a norm in family law proceedings but it nonetheless remains a relevant factor, especially when, as here, young children are involved.[249] Nor is the established pattern of residence and contact that has been built up to the date of hearing (the so-called status quo) of any special advantage to the father. It is, at best, a factor of “variable quality”.[250] An applicant has no onus of showing that there is a positive benefit in disturbing or displacing it. Nonetheless, the continuity of existing relationships, surroundings and other influence are obviously material to the children’s future development.
[249] cf. Gronow and Gronow (1979) 144 CLR 513.
[250] Mathieson and Mathieson (1977) FLC 90-230 at 76,222 per Fogarty J.

-Similarly, while none of the paragraphs in s 68F(2) expressly refers to the question of which parent had most immediate pre-separation care of the child, a number of them give implied support to an approach which prefers the primary caregiver in determining residence (including relocation) cases, viz., par (b) (the nature of the relationship between the child and each parent), (c) (the effects of change), and (l) (any relevant fact or circumstances).[251]
[251]Parker S, Parkinson P and Behrens J, Australian Family Law in Context – Commentary and Materials, 2^nd ed., LBC Information Services, 199 at p 907.
All this really means, of course, is that the removal of children from the person who has otherwise been their full-time day to day carer for most of their lives should only be done for a good reason, such as, for example, where the main carer is not a fit parent or is acting contrary to their best interests.
-The differences between the circumstances and needs of women and men should be taken into account so that both are treated equally and fairly[252]. A mother's desire to relocate equates to a father's desire not to. Thus, where a mother, who is the resident parent, wishes to relocate with a child, and where the court considers the child would benefit from contact with both parents, equal consideration should be given to a proposal that the father, in order to maintain frequent and regular contact, relocate with them and his reasons for not wanting to do so should be examined.

The correct approach

-In each case, the court must consider what parenting orders, if any, to make in order to promote the best interests of the child. It is not limited to choosing between the proposals put up by the parties but is bound to identify or, if necessary, devise a set of residence/contact arrangements that properly provides for the needs, adequately protects, and otherwise accords with the best interests of the child and promotes the objects and principles in s 60B [253] and the provisions of s 61C. However, due account must be taken of the fact that the proceedings are conducted in a framework of adversarial procedure familiar to the common law. A trial judge must afford the parties procedural fairness by indicating and inviting comment on changes to their own proposals he or she may contemplate. The importance of a child remaining with the parent in whose custody he has become accustomed to in the new location must be weighed against the continuance of full contact with the access parent, its extended family and its community.
-When considering the need to maintain stability it is important to bear in mind the geographical location may be as much a part of a child’s stability as is the household. The first question a judge should ask should be, "What is the likely effect on the child of being removed from his or her current environment?" rather than, "Is the mother's application genuine or realistic?"[254]. An assumption (which is not based on expert evidence) that a child’s psychological and emotional health as well as his or her developmental adjustment and socialisation depends on the quality, health and strength of the primary relationship with the residence parent but not with the absent parent and is not affected by the pattern, frequency or length of contact is dubious and may even be dangerous. It may also be contrary to the object and underlying principles stated in the Act. An applicant relying on this sort of argument would ordinarily be expected to adduce clear evidence as to what likely emotional consequences of refusal for both him or herself, the child and, where applicable, others who might be affected eg. a new spouse.
-The parties competing proposals must be compared and contrasted with a view to deciding which of them best promotes the overall interest of the child concerned. Dissecting the issue into two discrete questions obscures the real issue which is, of course, should the child live with the relocating parent in the proposed location or with the other parent in their proposed location? The evaluation of the competing proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
-A basic question is: where does the residence parent intend to live? This affects what level of contact the child can have with the other and enables the benefits and detriments for and to the child on each proposal to be compared and contrasted.
-The Court is not obliged in every case to adhere strictly to the three discrete steps referred to by the Full Court in A and A: Relocation Approach. There is no legislative requirement for a judge to spell out in each case exactly the findings about each sub-section in s 68F(2) nor the weight to be given to such findings. However, adequate reasons must be given for material decisions and findings and the process of reasoning should be transparent. Only the factors relevant to the particular circumstances of the case need to be considered and determined.
-The motive for relocating is a relevant consideration but once it becomes apparent that such a move is bona fide, the only other basis on which it may be appropriate to examine the reasons for the move would be to ascertain the likely effect upon the residence parent and/or the child if the move is unable to take place. The relocating parent should not be required to justify her proposal to move any more than the other should be asked to justify the decision to stay put. However, a brief investigation of the bona fides of the application is necessary in applying the paramountcy principle and ensuring that resident parents do not misuse relocation as a means of frustrating contact.
[252] This was recognised by Gaudron, Kirby and Hayne JJ in U v U.
[253] U v U (2002) 211 CLR 238.
[254]cf. Anna Worwood, International Relocation of Children - Are our Courts too Mother Centred?, THE REVIEW at 11.

The relevant considerations

Matters commonly arising for consideration in relocation cases, in addition to the bona fides of the application[255], include[256]:
[255]It is important to note, however, that the genuineness or validity of the relocating parent's reasons has limited significance in light of the High Court's 1999 decision in AMS v AIF.
[256]        The list, of course, is not exhaustive.
-the primary parent's freedom of movement and his or her prima facie right to choose where to live;
-the effect on the child, both positive and negative, of the proposed relocation and of restricting the residence parent's movements. The residence parent's emotional health and the extent to which his or her parenting capacity or even happiness is likely to be affected by the outcome. [257] A very important aspect of a child’s best interests is to live in a happy, stress free home environment. This may significantly be impacted upon if the residence parent is required to live in circumstances or under conditions which tend to diminish his or her long term future in either an economic or social sense. Obvious negatives for children living with a relocating parent include disruption to schooling and sporting activities, loss of established friends and close neighbourhood ties, plus reduced contact with the other parent and perhaps members of the extended family on both sides;
[257]        Craven and Craven (1976) FLC 90-049 at 75,042.
-whether undue interference by the court with the way of life the resident parent legitimately proposes to adopt will give rise to frustration and bitterness to the detriment of the child or children; [258]
[258]        Fragomeli and Fragomeli (1993) FLC 92-393 at 80,023.
-the desirability of maximising contact between the child and both parents;
-whether the relationship with contact parent can still be maintained at a good and functional level;
-the importance to the children remaining with the residence parent in relocated circumstances has to be weighed against the consequences of change to the children's environment, and more particularly against any loss of or reduction in contact with the contact parent, having regard to the degree and quality of the existing relationship with both parents and the contact history. The opportunities for continuing contact between the child and the parent left behind may be very significant, including the feasibility and costs of travel and alternative forms of contact;
-the distance and permanency of the proposed change;
-          the age and views of the child(ren);
-the need to remove conflict or tension between the parents and one or other of their new partners;
-the emotional economic and family benefits attainable in the new environment including access to extended family members and relatives;
-the attitude of the contact parent and underlying reasons; and
-the extent to which a relocating residence mother is dependent on social security or a former spouse; [259]
[259]        I and I (1995) FLC 92-604 at 82,028.
Factors telling against court-sanctioned migration of children of separated parents seem to be:
-the importance of the relationship with the contact parent and the effect relocation is likely to have on it in the short and long term;
-the need for a settled environment and the minimisation of disruption;
-opposition from the child(ren); and
-the uncertainty of a new environment.
Where there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are considerably more relevant than they might otherwise be.
Even in the UK, the inadequacy of the proposed plans rather than the need to keep in touch with the other parent may result in leave being withheld. Lack of a job or adequate finances, inappropriate accommodation, inadequate arrangements for schooling, doubts as to the motivation for leaving or the suitability of the custodial parent appear to be the main reasons for refusal. Other possible reasons might be special needs of the child unavailable in the proposed country, the genuine opposition of the child concerned, or perhaps an unusually close relationship with the other parent which might lead to a change of primary carer by a change of residence order.

The present application

All that remains to be done is for me to grasp the nettle and decide the quandary thrown up by the rival proposals in this case in accordance with the principles, approach and considerations identified above.
Needless to say, I have found this a difficult case to decide. But in the end have concluded that the children's best interests would be served by preserving the status quo. My reasons are :
(a)The mother was the primary carer prior to separation and has acted as interim resident parent since then. No-one criticises her performance in either role. There is no doubt in my mind that the mother should retain those mantles. She is the more experienced, capable and available parent. She is best placed to meet the children's physical, emotional and other needs on a day to day basis. The father does not seriously contend otherwise. What he does say is that it would be better for the children if they stayed in Brisbane. I agree.
(b)Staying in Brisbane is most likely, in my opinion, to achieve the object in s 60B and secure the children's best interests, including their right and need to be effectively fathered as well as mothered. They are living in a safe, secure, settled and stable situation where they are. The evidence does not disclose any overall advantage in disturbing it. Thus, the mother's alternative proposal is more consistent with the children's welfare than either of the father's.
(c)This is a case where the mobility rights of the primary carer and most suitable residence parent can and should yield to the best interests of the children. Altering their present living environment (either by sending them to their father's place in Brisbane or to somewhere on the other side of the Tasman) at this stage of their development would be likely to disadvantage the children more than benefit them. The children need a father figure and adult male role-model in their lives. The father is the best and, possibly only, one available to fill that role. It would jeopardise the relationship they currently have with their father because it does not provide for enough contact which, to my mind, they need and deserve to meet their relevant emotional and developmental needs. Relocation also has the distinct disadvantage of seriously limiting the father's capacity to shoulder his fair share of the burden of parental responsibility.
(d)The children are well established in their neighbourhood, school and sporting activities. And, while they would probably adjust to a move to New Zealand, nothing was filed by the mother from the school she intends to send them to so as to allow me to compare and contrast what it offers with what the children are currently receiving. Moreover, the accommodation available to the mother is only temporary at best and no evidence was adduced about its standard or condition, its proximity to transport, sporting venues and other amenities, shops, schools, child-care facilities, the paternal grandparents, the sports academy or the mother's relatives.
(e)Although the mother complains about being financially dependent on the father, there is evidence suggesting that she could easily increase the number of hours she currently works. She could also apply for permanent residence in Australia, which in the likely event of success would, after a two year waiting period, entitle her to Centrelink and other payments.
In any case, I am not convinced that she would be any more economically independent or financially better off living in New Zealand than she would be in Brisbane. The job offer with the sports academy is a short-term one and involves longer working hours for about the same or perhaps slightly less than what she currently receives from all sources of income.
It would mean that she would be unavailable for the children during all of their 2006 school holidays and may involve more school term child-care than they are used to at the moment.
This is a substantial factor because both parents obviously place considerable value on the current level of the children's access to the mother after school and on non-school days, especially with their demanding extra-curricular and sporting schedules.
(f)The older boy, TE, is strongly opposed to the move. While only eleven, his stance is a material consideration. The court counsellor reports at par 27 that TE "…indicated that he is pretty happy with the current resident and contact arrangements" and at par 28 is "…now…very happy and settled here".
He views Brisbane as his home and believes that he has better friends here in Australia than in New Zealand. When asked if he would like to return to New Zealand to live some day, his answer was a resounding no.
TE informed the court counsellor (par 31) that if his mother moved back to New Zealand he would want to live with his father here in Brisbane and visit his mother. He indicated that he would not be happy about returning to New Zealand at all.
TA, who was able to recall moving to Australia, reported that she missed her cousins and parental grandparents and reflected that if she had to move back to New Zealand she would be "sad and happy".
E chose not to answer any of the counsellor’s questions.
(g)The court counsellor recommends against relocation as contrary to the children's best short and long term interests. I was impressed with her approach to this dilemma. It is evident that in reaching her final recommendation she took into account the potential long term effect that thwarting the mother's personal and professional aspirations underlying her wish to return to New Zealand may have on her capacity in the longer term to emotionally support her children to the same extent and standard as she has up until now.
The court counsellor noted, however, at par 39, the mother has demonstrated that despite the emotional upheavals resulting from family breakdown and, more recently, the father's re-partnering, she has met her parental responsibilities in an exemplary way and carved out a new life for herself in Brisbane. She regularly attends gym and is, as I have already said, closely involved in the children's school and other activities.
I assess the mother, as does the court counsellor, to be a resilient woman who is capable and resourceful enough to make the best of her situation, whatever the outcome of these proceedings is, and to always act in the children's best interests. I am satisfied, having seen the mother, that she has the strength of character and personal assets needed to provide adequately for her children wherever she is. What she cannot do in New Zealand or anywhere else, for that matter, is father them.
The issue that concerns the court counsellor most is TE's reaction to relocation. She describes his conviction to remaining her in Australia, and more specifically Brisbane, as a strong one. She says that the boy is "…of an age where peer relationships begin to become very important" and during the interviews TE indicated that he has developed a significant attachment to his peers and indeed the social and sporting activities he shares with them. Adding to this the significant attachment to his father and their mutual love of sport, the court counsellor predicted that TE "…will react in a strong negative manner" if he is forced to relocate with his mother.
As the eldest child, TE would play a pivotal role in the mother's relocated household. The girls are considerably younger than him and the report writer noted that he demonstrated a strong sense of protectiveness towards them and "good age appropriate insight in regard to the family dynamic".
Any conflict between the interests of a parent and those of a child has to be resolved in favour of the child. The mother's happiness is a relevant factor but so, too, is TE's. One should not be traded for the other.
(h) There was no psychological evidence adduced by the mother on the question of the effect that refusal of the application is likely to have on the mother’s emotional stability and parenting capacity. This is regrettable because it requires me to speculate on a crucial matter. I found her own evidence on the issue was more convenient than convincing. I am sure that the mother would be happier and more contented in New Zealand. For how long I cannot say. But I am not satisfied that she would be overly unhappy or inordinately stressed in Australia.
There is no reason to think that her reaction to my decision will be so extreme as to have detrimental effects on the children’s emotional and psychological stability and security.
Any adverse response by the mother is likely to be short-lived. Because of her own insight into her children’s needs and through self-discipline, she would no doubt do her best to keep her feelings to herself and take the necessary steps to avoid burdening the children with them.
(i)I am completely satisfied that the mother would continue to promote the children's relationship with their father as best she can through all available means of direct and indirect contact if she resided in New Zealand.
However, regular physical contact wherever it takes place is going to be expensive. The mother is willing to bear equal cost but does not have the same means as the father. The financial burden on her would be disproportionately greater. While this can be ameliorated by appropriate orders, the mother's contribution to air travel, whether precisely equal or not, is still going to be a significant recurrent expense for a household of limited and uncertain means.
(j)Another practical difficulty which will substantially affect the children's right to maintain personal relations and have direct contact on a regular basis with their father is his entitlement to only four weeks annual leave. This means that unless he can purchase more leave the father will be available to have face to face contact with the children for 4 out of 52 weeks a year. This is much less, both in terms of frequency and duration, than what they are used to getting and the family reporter expresses the unqualified opinion at par 41 that this is insufficient time to enable the girls to maintain a significant attachment to their father. The court counsellor believes that eight weeks would be the minimum amount of contact required for E and TA to maintain a significant attachment to their father having regard to their cognitive and emotional development and the strength of the existing bond between them.
This court is unapologetically pro-contact. The Family Law Act places heavy emphasis on the children's right and need to have regular contact with both parents. It also views parental responsibility as a shared, if not joint, obligation. These considerations need to be given real and not merely token weight. They are not empty aspirations. Realistically, pre-teenage children cannot maintain a meaningful relationship with the absent parent and parents cannot adequately fulfil his or her duties and properly meet the responsibilities concerning the care, welfare and development of their children, without spending substantial periods of time with them on a regular basis. The mother’s proposal for less frequent but longer periods in the event of relocation is a poor substitute for the existing position for these particular children at this stage of their lives.
Accordingly, notwithstanding the mother's best intentions and efforts, relocation at this stage of the children's development is probably going to needlessly weaken and ultimately, perhaps, destroy the father - child bond.
The father has been an active participant and constant influence in the children’s lives before and after separation. Their close relationship is a significant factor against relocation at this stage of their development. In different ways the children’s emotional stability and overall wellbeing is as dependent on maintaining this relationship as it is on their attachment to their mother.
(k)The mother placed particular reliance on s 68F(2)(f) in her bid to relocate. She says that both she and the children are culturally isolated in Australia and that the children's need to maintain a connection with the lifestyle, culture and traditions of their ethnic culture is not being fulfilled in Australia.
This is undoubtedly true. However, technically speaking, the terms of par (2)(f) refer only to the Aboriginal and Torres Strait Islander cultures and do not expressly cover other races. However, I readily accept that the cultural background and other characteristics are relevant under par (2)(l).
Children of any indigenous origin have a right to enjoy their own culture. They have a right to maintain a connection with the traditions of their peoples and learn about their ancestors and other aspects of their heritage. This includes strengthening links with extended family members and having the support, opportunity and encouragement necessary to fully explore and develop a positive appreciation of their cultural heritage with other people who share that culture.
However, as Counsel for the father pointed out, neither parent placed particular importance on cultural issues in the four years they have spent in Queensland. The children were not exposed to any culturally significant experiences in Queensland when, presumably, there was an opportunity. There have been no attempts, for instance, by the mother to integrate the children into local ethnic communities or ceremonies.
(l) The parents share the same ambitions and have similar aspirations for the children. They share close and loving relationships with each child and have a proven capacity to provide for all their relevant needs. They have common standards and parental benchmarks. Each has demonstrated a positive and appropriate attitude to each child and either could effectively discharge the functions and responsibilities of resident parent. Both would only want the children to move to improve.
They made a joint decision to move to Australia in 2002 and in the process (at least inferentially) weighed the benefits against the potential detriments and decided, all things considered, including cultural ties, to move rather than stay. They considered the cultural aspects and benefits of life in New Zealand, including maintaining frequent contact and developing relationships with extended family members, as dispensable in 2002.
While the mother may, understandably, place more significance on family and other cultural matters, in the light of an unexpected and emotionally traumatic separation, it is the inherent value to the children, having regard to their current circumstances and the balance of the best interest factors, that decides the issue.
The children do not appear to be foregoing their right and need to maintain a connection with their culture to any greater extent now than what the parents as partners in 2001, and as separated spouses since 2003, have been willing to accept.
Accordingly, I think there is reason to believe that the mother's renewed interest in her roots and the children's heritage in New Zealand has more of a tactical dimension to it than she was willing to admit at the hearing.
(m) None of the mother's family members filed supporting affidavits. None of them appear to have visited the family in Australia in the last four years. The evidence was that even in New Zealand contact within the mother's family was regular but not frequent. None of her sisters, for instance, who the mother would rely upon for transport and child-care, have confirmed a willingness on oath to perform this role.
The parties took the children back to New Zealand in September 2004 to attend an uncle's wedding. The children spent time with each parent and members of their extended families on both sides. They stayed for an extra two weeks in New Zealand with the mother after the father returned to Brisbane to meet work commitments.
Intermittent contact of this kind is likely to continue for family events wherever the mother resides.

Having decided in favour of the status quo in line with the mother's alternative proposal on a range of other grounds it became unnecessary for me to consider a move by the father to New Zealand in order to maintain frequent and regular contact. There is little evidence on the point and his reasons for not wanting to move back to New Zealand were not really examined. I have no way of knowing whether the father would be able to provide for the children, emotionally and financially, as well over there as he has been able to here. There is too much uncertainty and too little information available for me to reach any conclusion beyond speculation.

The father's application for shared parenting seemed to me to be more strategic than serious.[260] It was not raised with the children in the family report interview. TE made it clear that he was happy with current arrangements (including one extra night per week with his father without the girls) and did not indicate that he wanted more.
[260]The tactical advantages of these sorts of applications were discussed in Payne and referred to by Kirby J in U v U (at 89,098). Thorpe LJ suggested that experienced family judges are well-used to the tactics and are readily able to distinguish between the cross-application that has ‘some pre-existing foundation and one that is purely tactical.’ While I do not profess to have lengthy experience as a judge, my forensic instincts tell me that the shared parenting proposal was included in the father’s application more for leverage than anything else.
At this stage of their development and schooling the children would be better off, in my opinion, by continuing to have a principal place of residence. No investigation of how well the children, especially the two younger ones, would cope with a week about arrangement was undertaken.
The father's domestic situation is unsettled. No affidavit from his girlfriend was filed. TE’s relationship with her is ambivalent at best.
Although the parents have done an admirable job in co-operating as separated parents, there is still an underlying tension and level of distrust (evidenced by their inability to agree about who should hold the passports) to leave me doubtful about their ability to share parenting time equally.
I know that the court counsellor was not opposed to the week about proposition but I am not satisfied that there is sufficient evidence to allow me to conclude that there would be a benefit in such a variation at this stage and will, therefore, leave well enough alone.
I only have power to make a parenting order that I think is a proper one. I would not be doing that if I endorsed the relocation proposal. It is unreasonable in the circumstances and, for the reasons already given, is likely, in my view, to disadvantage the children more than benefit them.
I therefore propose to make the following orders:
(1)The children TE born 31 May 1994, TA born 26 March 1997 and E born 24 February 2000 ("the children") reside with the MOTHER.
(2)Both parents have the responsibility for the long-term care, welfare and development of the children.
(3)Both parties have the responsibility for the short-term care, welfare and development of the children when the children are in each party's respective care.
(4)The FATHER have contact with the children at all such times as agreed to in writing but, failing agreement, as follows:
(a) each Wednesday from after school to before school Thursday morning;
(b) each second weekend from after school Friday to before school Monday morning;
(c) in respect of the child TE:
(i)during the football season, overnight each week on the evening of the football training; and
(ii)at times outside the football season, from 5.00 pm each Thursday until the commencement of school on Friday morning and such contact commencing at the FATHER's residence with the MOTHER delivering TE to the FATHER;
(d)half of the gazetted school holidays provided that the father has the first half in 2006 and thereafter in alternate years and the second half in 2007 and thereafter in alternate years.
(5)Both parties bear the transportation costs associated with contact changeovers.
(6)Neither party change their residential address or telephone number without giving the other party 28 days' notice.
(7)The parties keep each other informed of any serious accident or illness suffered by the children at any time.
(8)The MOTHER authorise any educational institution attended by the children to forward directly to the FATHER, and without limiting the generality, school reports, newsletters and other information which the FATHER may reasonably require at the FATHER's expense.
(9)The FATHER be entitled to attend parent/teacher interviews, school functions and other activities involving any of the children.
(10)Each party authorise any health professional whom any of the children may consult to provide to the other any reasonable request for information but at the requesting party's expense.
(11)The Court retain possession of the children's passports unless otherwise agreed in writing by the parties or further ordered.
IT IS FURTHER ORDERED THAT:
(12)The matter be removed from the list of cases awaiting finalisation.
(13)Pursuant to Section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars will be included in the orders that will issue.
I certify that the preceding 404 paragraphs
are a true copy of the Reasons for Judgment and proposed orders herein of the Honourable Justice Carmody.
………………………………….
Associate
Date: 30 January 2006.