Warren and Warren - [2008] FMCAfam 1132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WARREN & WARREN

[2008] FMCAfam 1132

FAMILY LAW – Parenting – best interests of child – relocation.

Family Law Act 1975 (Cth) ss.60B, 60CC, 61DA, 65DAA

Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296

Applicant:

MR WARREN

Respondent:

MS WARREN

File Number:

PAC 3313 of 2007

Judgment of:

Halligan FM

Hearing dates:

22 & 23 September 2008

Date of Last Submission:

23 September 2008

Delivered at:

Parramatta

Delivered on:

23 September 2008

REPRESENTATION

Solicitors for the Applicant:

Applicant In Person

Counsel for the Respondent:

Mr Cook

Solicitors for the Respondent:

Dakin Law

ORDERS

Orders are made in accordance with the mother's minute of order marked exhibit D.
Otherwise all outstanding applications are dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 3313 OF 2007

MR WARREN

Applicant

And

MS WARREN

Respondent

REASONS FOR JUDGMENT

Introduction

This is the hearing of parenting applications of the parents of a nine-year-old boy, [X]. The father seeks an Order that [X] return to live in what, in his amended application, he termed "the Sydney Hills district" but which is now more clearly identified by reference to a number of suburbs I will mention shortly, and that the boy thereafter live on an equal time shared-care arrangement between the parents. I understand the father suggests that be on a week-about basis and half of school holidays. He proposes an equal shared parental responsibility Order.
The Order ultimately pressed by the mother is that the parents have equal shared responsibility for [X]; that the child live with the mother; that the mother be permitted to maintain the residence of the child in the Ballina area; and that the child spend time with the father during school terms on alternate weekends, beginning as soon as practicable at the conclusion of school Friday and concluding between 4pm and 6.30pm Sunday, commencing on the second weekend after the date of the Orders, and for half of the school holidays as agreed or, in the absence of agreement, for the first half in odd-numbered years, and the second half in even-numbered years, and that the child otherwise spend time with the father as agreed. The father lives in the north-western suburbs of Sydney, and the mother proposes that the child travel to and fro by plane between Ballina and Sydney Airports, and that each of the parents share the cost of that travel, the mother meeting the cost of travel for half of visits on a round-trip basis and the father meeting the costs of the other half of the round trips.
The mother also proposes other orders, including that communication between the father and child, failing agreement, be each weekend the child is not with the father, by telephone between 6 pm and 7 pm on Saturday; that each party keep the other informed as to the child's health and welfare and notify the other as soon as possible in the event of any serious illness, accident or medical emergency suffered by the child while in that party's care; that each advise the other of the party's residential address and contact telephone numbers and advise of any changes within seven days of them taking place; that the mother provide the father copies of all school reports, newsletters and school photos in respect of the child within 14 days of receipt of them; and that the mother advise the father in advance of parent-teacher interviews, school concerts, school sports days and other related school activities to which parents are ordinarily invited, and that the father be at liberty to attend those occasions.

Background

The father is 48, having been born in 1960. The mother was born in 1961 is aged 47. It seems that the parties commenced cohabitation in 1986, married in 1988, separated for one and a half to two years in about 1992 or 1993 to about 1994, and finally separated in October 2006.
There are three children of the parties' relationship. Apart from [X], born in 1999, and therefore aged nine, there is also [J] who is aged 18, born in 1990, and 16-year-old [M], born in 1992. The mother initially in her response was seeking Orders in relation to [J] and [M], however, she has abandoned that part of her response. Similarly, in her response, she was seeking a sole parental responsibility order, but is now proposing an equal shared parental responsibility order in relation to [X].

The evidence

During the parties' cohabitation, the father says that he performed all the parenting and domestic chores "equally' with the mother, but this is a conclusion with no evidence to support it. The mother says that she prepared almost all the meals, did all the washing, ironing and cleaning and, during the week, took the children to all the school and extra curricular activities except parent-teacher interviews. On weekends, she says that both parents took the youngest two children to sporting and social activities.
In relation to the attendance at parent-teacher interviews, the mother, at paragraph 5 of her August 2007 affidavit, said that both parties attended parent-teacher interviews, but in paragraph 38 of the second affidavit of February 2008, she said that she attended all parent-teacher interviews on her own. In evidence in cross-examination, she said that both of those statements were not accurate and, in fact, she alone attended most but not all of the parent-teacher interviews.
As I say, the father's assertion of equal performance of parenting and domestic duties is a conclusion without evidence to support it, and bearing in mind that the mother disputes it, the Court cannot accept it. The mother's assertion as to her role in relation to preparing almost all meals, doing all washing, ironing and cleaning, and the other activities, was either without challenge or unsuccessfully challenged, and I accept that evidence. Ultimately, its significance is, at best, marginal.
When the parties separated in October 2006, the mother left the matrimonial home with the children, and the father remained in it. She moved into a three-bedroom townhouse at [N]. Subsequently, and it would seem likely within a few months, the father became bankrupt and the mortgagee seized the matrimonial home and sold it. At that point, the father moved into rented two-bedroom premises at [O] and, later, he moved to rented three-bedroom premises at [C]. The mother says that at this time, by agreement between the parents, the father spent from Friday afternoon to Monday morning before school with [M] and [X]. She was not challenged in this, and I accept it.
[J] seems to have run his own race and made his own arrangements from time to time. Although I am satisfied it is largely irrelevant, there does seem to have been some difficulty in the relationship of each of the parents with [J]. But as I say, that is not relevant to the present applicaitons.
In December 2006 the mother said that her rent went up $30 per week. She said that she could not afford it, and so she moved in with her brother at [B] temporarily. At this stage, [X] went with her, [M] went to live with the father, and [J] moved in with a maternal aunt at [K]. The mother's evidence, which seems to be unchallenged, is that [X] and [M] spent alternate weekends with each parent, that is, the suggestion seems to be that they were together each weekend, but alternated between the parents.
The mother's evidence that she could not afford the rent after its increase is again a conclusion, in the same way the father's assertion that he performed parenting and domestic duties equally with the mother was. There is insufficient evidence for me to make any finding as to whether the mother could or could not afford that increase.
On or about 1 May 2007 the mother says that, having formed an intention to move to Ballina, she informed the father of her intention to move there with [X]. Her evidence is that he raised no objection. She says that about 13 May 2007 she asked him to deliver [X]'s bike to her so that it could be taken to Ballina and placed in temporary storage awaiting her arrival with certain other items she was having moved there, and he complied. There is no suggestion of explicit agreement by the father to the move. The mother simply says he did not object. The mother was not cross-examined by the father in relation to this, and I therefore accept that it happened.
Whilst the mother says that the father expressed no overt objection to the move, the fact that he complied with this request for the purpose for which it was made suggests that at that point the father was acquiescing in the mother's proposed move. It is more than passivity on his part.
On 12 June 2007, the mother says that she told the father that she was bringing her proposed departure date forward one week from 1 July 2007. She says the father objected, and said that she should put it back to the prior date. The mother then says that she explained why she wanted to bring it forward, namely, to ensure that [X] was enrolled in a new school and settled in before the commencement of the new school term, and that the father said no more. Her evidence again is not the father made any overt expression of agreement or approval, but that he raised no explicit objection with her. However, the following day, the father filed the current application with the Court seeking to forestall the move, and the application was served on the mother on 14 June 2007. The mother nonetheless thereafter moved with the child to Ballina.
I am satisfied that as at 13 May 2007, whilst the father had not expressly agreed to the move, by his conduct in providing [X]'s bike for the purpose of it being sent ahead of the mother and [X] to Ballina, he was acquiescing in the move. At that point, if there was some objection, I would have expected the father to express it overtly. He did not. It was not suggested to the mother in cross-examination that he did otherwise than as she said he did in response to her request in mid May. However, as I say, before the mother actually moved, she became aware that the father was objecting to the move, and she moved nonetheless.
The matter came before the Court on the first occasion on 22 June 2007. On that date, the matter was adjourned until 14 September 2007 and an order made, to continue during the period of the adjournment, for the father to see [X] each alternate weekend from around 6 pm Friday to around 5 pm Sunday, commencing on 29 June 2007, the mother to deliver [X] to and collect him from the father at Sydney Airport.
When the matter came before the Court on 14 September 2007, the matter was listed for final hearing on 3 March. The Orders of 22 June 2007 lapsed on that date, and no further Orders were made in relation to the child spending time with the father. I do not understand there to be any issue at all, that the child spent half the Christmas 2007/2008 school holidays with the father, despite the absence of an Order. The mother, as I understand it, asserted that the boy spent every alternate weekend with the father between 22 June 2007 and her affidavit in February 2008, encompassing, therefore, the period from 14 September till February 2008, when no Orders were in force. The father suggested that there were many weekends when, in fact, he did not see the child. The state of the evidence does not enable me to resolve definitively precisely when the child saw the father during that period of September 2007 to February 2008.
On 3 March 2008, unfortunately the matter was not reached and was adjourned until yesterday for the hearing to take place. On 14 March 2008 the matter was re-listed and consent interim orders were made, providing for [X] to spend time with the father from approximately

6 pm
until approximately 6 pm each alternate weekend, no days of the weekend specified, with the mother to cause the child to fly from Ballina to Sydney and return. Despite the fact that the Order as drafted did not specify the commencing day or concluding day of the alternate weekend time with the father, the evidence satisfies me that the parties intended it to be from Friday afternoon to Sunday afternoon. The father has seen the child each alternate weekend since, except for one weekend, which was moved out of normal pattern to fall on the Father's Day weekend.
On the Father's Day weekend, and it would seem likely on at least one other weekend, the child did not come down on the Friday, but rather, came down on the Thursday and missed school on the Friday. The mother says that she could not afford the cost of travel on the Friday. Again, this is the assertion of a conclusion with no evidence enabling the Court to independently come to the same conclusion. There appear to have been a few occasions also where the boy returned, after spending time in Sydney with the father, on Monday rather than Sunday, again resulting in the boy missing days at school, and it is suggested to have been for the same reason.
The mother does assert that there was, in around February 2008, as I understand it, a weekend when she could not afford the round-trip airfare for the boy to see his father, and she asked the father to contribute half the cost, and he declined, saying he could not afford it. On that occasion the boy did not see his father. Otherwise, the mother has met the whole of the cost of the boy's airfares for the purpose of seeing the father, when he has travelled by air.
The father says that, in fact, it is costing him money to collect and return the child from and to Sydney Airport. He suggests it costs between $100 and $120 each trip in tolls, petrol and parking at the airport.
The father gave oral evidence suggesting that he believed the cost of airfares between Ballina and Sydney return ranged between $125 and $400. His affidavit evidence was that the cost was between $150 and $300, depending upon the particular season and the pricing structure.
The mother said in her earlier affidavit that the fares start from $49 each way, that is, $98 for a round trip. She later said that she understands the cost is rather higher than that, between $100 and $150 each way, making it a $200 to $300 round trip.
The father gave evidence, which was not challenged and which I therefore accept, that for him to visit Ballina, airfares, motel costs, car hire and meals for himself and [M] - who he said he could not leave to fend for herself - would be between $600 and $800, and that travelling by car would entail a four to five-day weekend for him to be able to see [X] in Ballina.
There was considerable contention between the parties in relation to the payment of child support. The mother suggested that there was a voluntary arrangement, whereby the father was to pay her $300 per week when she had all three children. As I understand it, she asserts that she did not receive those payments on a regular basis, and it seems the father asserts that she did. I cannot make a finding one way or the other on the evidence as it stands.
After the mother decided to move to Ballina, it seems for the first time child support was assessed through the Child Support Agency, and it also seems that the liability is registered for collection through the Agency. The mother said the father was assessed at $100 per month child support for [X]. The father said that he was, at one point, assessed at $108 per month, but recently, that increased to $182 per month.
The mother asserted that no child support was received by her between September 2007 and January 2008, and then the father paid three months' child support in a lump sum. The following month, the mother asserted that the father was again in arrears by one month. The inference from that would seem to be that the payment in January would have brought the payments up to date.
In cross-examination, the father said that he paid child support regularly. When asked to clarify what he meant by regularly, he said he meant every few months. Of course, his obligation is not to pay every few months. He said he paid when he had the money. In fact, he suggested that he was "probably" in advance of payments at the present time, after having paid $400 three weeks ago. He could not remember when or how much the prior payment before that was.
The father put into evidence what was represented to be an extract of payment records from his bank account of child support. In reverse date order, those records suggest $400 was paid on 10 September 2008, $300 on 9 August 2008, $110 on 4 April 2008, $100 on 25 February, $200 on 18 February 2008, $300 on 15 January 2008, and $474.30 on

7 September 2007
.
Ultimately, I can make no clear finding in relation to whether the father is in arrears currently, or not. It was always open to each of these parties to present to the Court evidence in the form of a statement of the father's account from the Child Support Agency, but neither has done so. What is undoubted on the evidence of both parties is that the father has been in arrears at times, and he is not making the payments at the intervals and in the amounts as required by the assessment.
Turning, then, to each of the parties' proposals. The father, as I say, proposes that there be an equal time arrangement with the child and, in consequence, the mother return to the Sydney metropolitan area. His evidence is that he works full time as a [occupation omitted]. He says that his hours are flexible and he will be available to care for [X] whenever [X] is in his care and not at school. He proposes to pick the child up after school. In fact, his evidence is that he has cut back a number of evenings per week that he formerly worked upon assuming responsibility for [M]'s care. He said he cut them back from four to two, and cut back the amount of time that he spends on the evenings when he does work. [M] and [J] are living with him, but according to the father, [J] intends moving out at around the end of this year. The mother suggests that she has no knowledge of such a plan. The unchallenged evidence of the father is that [M] intends remaining with the father even if the mother were to move back to Sydney.
The father's application seems to be predicated upon three things: the mother living close to where he lives; the mother securing employment with reasonably family-friendly working hours; and the mother being able to afford accommodation near where the father lives.
The father lives in [C]. The father's application was originally framed as requiring both the mother and the child to return to live in what he described as the Sydney Hills district. Bearing in mind the imprecision of that term, I asked him to clarify the suburbs that he means, and he has indicated that he seeks an Order that the child, return to live in any of the following suburbs: [C], [N], [B], [V], [G], [D], [P], [Y], [A], [R], [U], [Q], [W], [E], and [S]. That clarification only arose at the very end of final submissions, and I have not been given the benefit of hearing any evidence as to what the practicalities of a shared-care arrangement might be if the father is in [C] and the mother and the child are, for example, living in [W], or [R], or [E], or [G]. The mother lived at [N] and worked at [F] before moving in with her brother after her rent increase. [F] is a suburb adjoining [G]. She said that she was unable to find employment closer to home than at [workplace omitted] at [F], where she says that that work was casual, despite having checked all the shops in [N] Shopping Centre. Her normal hours were 9am to 5pm, but she was required to work later, up to 7pm. The number of days per week she worked varied, because of the casual nature of the employment, but it was usually about four per week, and she could be asked to work later a few days per week. This then necessitated out of school hours care arrangements for [X].

The mother, in her affidavit evidence, suggested, as I understood it, that one of the financial constraints that she had that led to her having to abandon her own independent rented accommodation and move in with her brother was her inability to meet the costs, among other things, of out of school hours care. In fact, she had none, because friends were providing that care for her. She conceded in cross-examination that this evidence was incorrect. I note, in relation to this, and the evidence about the father's attendance at parent-teacher interviews, that when these matters were raised with the mother, she readily made concessions that her affidavits were wrong.
In relation to the mother seeking employment, particularly employment with reasonably family-friendly working hours, the father has said that the mother would have no difficulty getting work in the [H] district, and he tendered printouts of jobs that he says he had found on the internet in February this year, that I understand he was suggesting would be suitable for the mother. Many did not indicate a pay rate. None were indicated as being in the [H] district in the sense that the father has now defined it.
The mother currently works 37 hours per week, 7 am to 2.30 pm. She works about 10 minutes away from home, and about five minutes away from [X]'s school. She previously had family to provide free before-school care. She can collect the child from school at the end of school after she finishes work. She has now changed the arrangement for before-school care and takes [X] to work with her at 7 am, gives him breakfast at work, and then he accompanies the mother as she performs various tasks in connection with her employment, before she then delivers him to school at the commencement of the school day.
The mother's evidence is that she earns $600 gross per week, or about $515 per week net of tax. Her hourly rate, therefore, is about $17.65. Of the positions advertised in the document tendered in the father's case that identify a pay rate, and many of them did not, one was at $15 per hour, and three was at $18 per hour.
The mother's evidence is that her rent currently is $270 per week. She suggested in her affidavit that it would cost at least twice that to rent suitable accommodation in Sydney. When questioned about this, she indicated she had made no inquiries in relation to the cost of accommodation back in Sydney, and there was, in fact, no foundation for her assertion that it would cost at least twice that to find suitable accommodation in Sydney. However, in relation to the properties that the father put into evidence as ones that he had searched on the internet in February 2008 as being appropriate for the mother, the rents were between $310 and $350 per week. Five were at [P]; one was at [D]; and two were at [N]. Travel time between any of these suburbs and the school the child might attend in peak hour, and the cost of before and/or after-school care for the child, have not been disclosed in the evidence. Certainly, if the father is proposing, as I understand he is, that he assist the mother in providing any necessary before or after-school care for the child, obviating the need for the mother to pay for it, the practicalities of getting the boy to and fro between the parents’ homes across the north-western suburbs that might be involved here was not traversed in the evidence.
As I say, the mother proposes that she and the child continue to live in Ballina, and that the father see the child on alternate weekends and half of school holidays. I have also already mentioned that she rents a two-bedroom unit for $270 per week. She says it is near the beach at

East Ballina
. She was previously relying on either a sister or her parents to provide before-school care and to deliver the child to school. As I say, she now does that herself.
In addition to her income from her work, she receives family tax benefit and rental allowance. That, together with child support and her net income, gives her a weekly net income of $715.50 per week, or about $37,000 per annum. The father's evidence is that his gross annual income is $75,000 for the last year. The mother has her parents and two sisters and their families in Ballina. [X] has cousins, including one of a similar age who is in the same year, although not the same class, at the school that he attends. The mother says that she also has an uncle, a great-aunt and numerous second cousins in Ballina who are all supportive of her. She says that [X] has been spending a lot of time with his cousins, the maternal grandparents and, she suggests, great-grandparents, since moving to Ballina. However, there is no evidence of any great-grandparents living in Ballina.
The evidence is that [X] has settled quickly into his school. I do not understand this to be in issue. The father suggests that he could settle readily, on a return to Sydney, back into his old school. The mother seemed less ready to make the same concession, but I am not satisfied that he could not. The mother further did suggest that the boy was not particularly happy living in Sydney, but I am not satisfied that that is the case.
If the mother were to return to Sydney - and she made it plain in her evidence that if the Court finds that [X] must live in Sydney, she will return with him - the evidence does not enable me to make any clear finding as to the income the mother might earn, the cost of her accommodation, the travel that might be entailed in any care arrangements for the child, and other matters of a practical nature going to, firstly, the practicality of a return to live in Sydney and, secondly, the practicality of putting into effect an equal time arrangement if she did.
Whilst, strictly speaking, there is no onus of proof in a parenting matter where the child's best interests are the determinative factor, nonetheless a party asserting a fact needs to prove it on the balance of probabilities. To the extent that the mother is seeking to assert that she cannot afford to return to live in Sydney, I fail to see the evidence that would support such a finding. Similarly, to the extent to which the father is asserting that she can, again, I fail to see the evidence that would support such a finding. Despite the fact, as I will come to shortly, that this is probably one of the crucial matters when one has regard to the Family Report, it is regrettable in the extreme that the Court is left with such a dearth of evidence on such a crucial fact.
The mother's evidence is that she has two brothers and a sister living in the Sydney metropolitan area. One lives in the [B] area. That apparently is the one that she moved in with when she says she could no longer afford private rental accommodation after separation. However, she says that he is in the process of selling his home and moving elsewhere in the Sydney area. Her other siblings live some distance away from any of the suburbs the father identifies as the [H] district. The mother further suggests that all her siblings work full time and have their own commitments, and therefore they would not be able to assist her in before or after-school care for [X].
As I understand it, the mother concedes that [M] is settled in Sydney and does not want to move, and she concedes that the option of the father moving to Ballina to be close to her and the child and thus provide a better opportunity to spend more time with the child is simply not a practical option.
The mother pays [X]'s school fees at a Catholic school of $600 per month. The father does not contribute to the cost of [X]'s school fees beyond assessed child support. His evidence is that he did not contribute specifically to school fees for [X], who similarly attended a Catholic school in Sydney before moving to Ballina, after separation and before the move to Ballina. He suggests that he is meeting [M]'s costs of attending a state high school. There is no evidence as to what those costs may be. He refers, as I understand it, to stationery and uniforms. As I say, there is no evidence as to the amount involved.
[X], this football season, appears to have been enrolled to play football both in Ballina and close to the father's home, and has done so.
The mother's evidence is that she is confident that she can afford the cost of flying [X] to and fro to see the father once a month. It may be slightly more than that if it is once every four weeks. I take that to be the effect of her evidence. As I understand it, the father's position is that he cannot afford the cost of any of the travel but, again, neither party puts evidence before the Court as to their financial circumstances sufficient to enable the Court itself to make a finding as to whether these expenses are affordable or not.

The Family Report

The Family Report is of considerable assistance to the Court. The author of the Family Report was cross-examined by both parties’ legal representatives. I am not satisfied that any basis was shown for disregarding the Family Consultant’s evidence, either in whole or in part, and it was not submitted on behalf of either party that there was any difficulty in relation to the opinions expressed ultimately by the author of the Family Report.
The author of the Family Report records that the mother acknowledged that [X] has a close and positive relationship with the father. She also told the author of the Family Report that [X] has told her that he wants to return to Sydney. I find this difficult to reconcile with the mother's evidence that, in fact, the boy is well settled in Ballina, and did not like it in Sydney. I have already indicated that I am not satisfied that the boy did not like living in Sydney, and this particular part of the Family Report is why I am not satisfied it is so. The author of the Family Report records the mother as saying that, despite [X]'s express wish to return to Sydney, returning to Sydney would not be in [X]'s best interests as she would have to live in an undesirable area because she could not afford to rent suitable accommodation in a reasonable area.
The mother is recorded as explaining to the author of the Family Report she would need to provide accommodation for [J] and [M] if she moved to Sydney, because she believed they would not remain living with their father if she lived in Sydney. That is not the evidence that is before me. The mother is recorded as not appearing to have considered the possibility of renting a smaller home for her and [X] only, and [J] and [M] continuing to live with their father. When this was suggested to her by author of the Family Report, she is recorded as acknowledging that she might be able to afford such accommodation in a reasonable area, but as she had not investigated this option, she was unable to comment further.
In relation to the mother's suggestion that the reduction in time [X] might spend with the father on her then proposal of [X] coming down to see the father on a monthly rather than fortnightly basis, the mother is recorded as suggesting that the boy could spend time with his father, being compensated by spending the entire school holidays with the father. The author of the Family Report indicates that the mother did not appear to have considered how this might impact on [X]'s peer relationships in Ballina, especially as he approaches and enters adolescence.
In relation to [X] himself, he was observed with both parents and, according to the author of the Family Report, he was seen to interact with them in a relaxed and comfortable manner, as he did with his elder siblings. He was observed to move between his parents with relative ease on a number of occasions.
[X] is recorded as having initially told the Family Consultant that he wants to live with his mother in Ballina and see his father once a month, but he later said that he would like to move back to Sydney, although he enjoys living in Ballina. He added that he misses his father and his siblings, and he would like to see them more often. [X] began to cry and became quite distressed when talking about his parents' separation and his wish that they reconcile. This wish is not an uncommon phenomenon with children of this age.
The author of the Family Report records that [X] still appeared somewhat distressed when he returned to the waiting area and immediately went to his mother and hugged her. He appeared very comforted by his mother's presence and her physical affection.
The father, as I understand it, in cross-examination of the expert, sought to establish that the boy would not have had an opportunity to approach him for comfort and that, in effect, the mother was only the parent available to him. I am not satisfied that he succeeded in establishing that fact.
The Family Consultant is of the opinion that [X] has an attachment to both parents, but his attachment to his mother appears stronger. She was of the opinion that it is in [X]'s best interests that he maintain a positive and meaningful relationship with both his parents. At paragraph 25 the Family Consultant says, and I quote:
If [X] remains living in Ballina his relationship with his father is likely to suffer and his father will have limited opportunity to be involved in [X]'s day to day life including his schooling, sporting and social activities. As [X] grows older and approaches and enters adolescents, it will become increasingly difficult for Mr Warren and [X] to maintain a significant and meaningful relationship which is so vital for a child's development, if [X] is not living within a reasonable distance of his father and his father cannot be part of his every-day life.
In the following paragraph, the Family Consultant says:
The best outcome for [X] would appear to be that his mother return to Sydney and for him to continue to live with her.
This comment is made after the author of the Family Report refers to the reasons why the father is particularly concerned about his relationship with [X] being negatively affected by the move to Ballina. The author of the Family Report opines that if the mother and [X] return to Sydney, with the child living primarily with the mother, [X] can resume a relationship with his father which will allow the father to be involved in most aspects of [X]'s life. It would also allow [X] the opportunity of spending time with his siblings in a natural and unregimented way. He would also be able to be involved in sporting and social activities without the disruption of travelling each alternate weekend outside his normal living area.
The author of the Family Report goes on to acknowledge, however, that if the Court decides that [X] should return to Sydney and, in consequence, the mother moves to Sydney, she may see this as another example of how her life choices have been limited by the father's actions. In the opinion of the author of the Family Report:
This may have a further negative effect on her relationship with Mr Warren and, as a consequence, create further conflict between the parents. If [X] were to live in Sydney, he would move more frequently between his parents and it is therefore possible that he may be exposed to a greater degree of inter-parental conflict than he is currently.
The Family Consultant proceeds, in paragraph 28:
It appears that the move to Ballina has had a positive effect on Ms Warren, and this is likely to have had a positive effect on her parenting ability. [X] has a very close relationship with his mother and it is in his interests that his mother has a positive and hopeful outlook on life. It is likely that Ms Warren will find it difficult if she is to return to Sydney. She may benefit from counselling to assist her to deal with the difficulties that a return to Sydney may present for her. Both parents are likely to benefit from post-separating [sic] counselling in order to assist them to develop a more positive co-parenting relationship and to avoid the possibility of [X] being exposed to any further conflict they may have.
In paragraph 29 of the Family Report, the Family Consultant suggests that the father's response to an awareness that it may be stressful to the mother to return to Sydney is to suggest that [X] be cared for in an equal time arrangement. The Family Consultant opines:
In spite of Mr Warren's involvement in [X]'s life and their close relationship, an equal time arrangement would require that the parents have good communication, which clearly is not the case currently, and that they should live within a reasonable distance of each other so that [X] could travel to school from both houses with relative ease. Given that it is difficult to predict where Ms Warren might live if she were to return to Sydney, it is not possible to know whether an equal time arrangement would be practical. [X] has been cared for by Ms Warren throughout his entire life and it is clear that he wishes to continue living with her. If the Court decides that
Ms Warren should return to Sydney, it would in (sic) [X]'s interests to continue living with his mother but spend time with his father on a regular and frequent basis, that is, every second weekend and one night in each week.
The recommendations that are then made in relation to matters other than equal shared parental responsibility are contained in paragraphs 32 to 35 as follows:
32.It is recommended that [X] live with his mother, and if the Court finds that it is practical for Ms Warren to return to Sydney, that [X] live with her in Sydney.
33.It is recommended that if [X] lives in Sydney, that he spend time with his father each alternate weekend from after school on Friday until the commencement of school on Monday morning.
34.It is recommended that if it is practical, given the distance between the parents' home, and if [X] is living in the Sydney area, he also spend one night each weekend [sic] with his father from after school until the commencement of school on the next morning.
35.It is recommended that if the Court finds that it is not practical for Ms Warren to live in Sydney, that [X] live with her in Ballina and that [X] spend time with his father each alternate weekend from Saturday morning until Sunday evening, and for half of the school holidays.

The applicable law

In determining parenting proceedings, the Court may make such parenting order as it sees fit, subject to the rebuttable presumption as to equal shared parental responsibility and subject to statutory provisions about parenting plans (s.65D, Family Law Act 1975 (Cth)). There have been no parenting plans in this matter, and the parties agree there should be an equal shared parental responsibility order.
In deciding what parenting order the Court should make, the Court must regard the child's best interests as the paramount consideration (s.60CA). In determining where the child’s best interests lie, the Court must have regard to the primary considerations set out in s.60CC(2), and the additional considerations set out in s.60CC(3). In assessing those matters, the Court must take into account the objects of Pt.VII of the Act and the principles that underlie it set out in s.60B of the Act (Goode v Goode [2006] FamCA 1346 at [10] ], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9).
Under s.65DAA, if the Court is to make an equal shared parental responsibility order, the Court must consider making an equal time order. That is, it must consider whether such an order would be in the child's best interests, it must consider whether such an arrangement is practical, and it must then, if the answer is yes to the preceding questions, consider making the order. If the Court does not make an equal time order, then it must consider making a substantial and significant time order in the same sense.
The options, therefore, that the Court must consider in this particular matter are the option that the mother puts forward, the option that the father puts forward to the extent of [X] living in the specified suburbs the father refers to, and a substantial and significant time arrangement.

Assessment of the relevant considerations

I will address each of the relevant considerations in s.60CC in turn.

The benefit to the child of having a meaningful relationship with both of the child's parents (s.60CC(2)(a)).

There is no doubt in my mind that the child can benefit from a meaningful relationship with both parents, and the evidence suggests that if the mother and the child remain in Ballina, there may be some difficulty in the maintenance of the former relationship. But the evidence does not suggest that the relationship would be lost. What s.60CC(2)(a) refers to is a meaningful relationship, not the optimal relationship. What is to be sought after in any parenting orders is the facilitation of a relationship that is meaningful and optimal in all the circumstances, subject to other relevant considerations.

The need to protect the child from abuse, neglect and family violence (s.60CC(2)(b))

The second of the primary considerations is not suggested by either parent to be relevant.

The child’s views (s.60CC(3)(a))

While child expressed equivocal views to the Family Consultant, the mother's own evidence is, as I understand it, that the boy has expressed the view to her that he would wish to return to Sydney. The father's evidence was to suggest that the Court should, in effect, totally disregard the boy's views. He suggested that at age nine, he effectively does not know his own mind and changes it from moment to moment. With respect to the father, I do not accept that to be so. The child, at age nine, is not self-determining but, by the same token, the Court cannot totally ignore the wishes of a nine-year-old child. They are relevant, and it is a question of the weight to be given to them.
In assessing that weight, I note the reference by the Family Consultant to the boy becoming distressed in the context of expressing views in relation to his wish for his parents to reconcile. It is possible, of course, that the child's expressed wish to return to Sydney may, to some extent, be influenced by a thought that perhaps, if that happens, his parents may reconcile. To that extent the view about wishing to return to Sydney ought to be discounted. And the other basis for discounting or qualifying the view that is expressed by the child is one by reference to his age. There is no suggestion that his degree of maturity is other than consistent with his chronological age.

The child’s relationships with his parents and others (s.60CC(3)(b))

I have already mentioned the child's close relationship with each of his parents, and the findings of the Family Consultant that the bond to the mother is the stronger. That is not to suggest in any way that the bond to the father is not a most significant one.
The mother gives evidence that as a result of the move to Ballina, the boy has been able to develop relationships with his maternal extended family. There is no real evidence that enables me to make any findings as to the opportunity or otherwise of the boy's involvement with any paternal family, whether he was in Sydney or Ballina. Clearly, remaining in Ballina provides an opportunity for the boy to continue to develop those closer relationships with members of his maternal family, but the suggestion by the author of the Family Report is that that may come at some cost to his relationship with his father, and I am satisfied that that is the more important one.

The willingness and ability of each parent to foster a close relationship between the child and the other parent (s.60CC(3)(c))

The mother is to be recognised positively for the fact that she has ensured that the boy has been able to come down and spend time with his father, at her sole expense, not only on alternate weekends, but also for school holidays. The school holidays have never been covered by Court Orders. The mother has therefore facilitated something quite voluntarily, and she needs to be recognised positively for that. That, to my mind, indicates a commitment to facilitating a positive relationship between the father and the child. One might, of course, observe that this has all happened in the shadow of pending proceedings as to where she and the child might ultimately live. However, I am not prepared to discount in any way the comments that I have just made on this consideration, because it was never put to the mother in cross-examination that she was doing this just to put herself in a better light for these proceedings.
Otherwise, there is nothing in the evidence that I can see that would give rise to any matter for concern in relation to the father's commitment to either participating himself, or facilitating the mother's participation, in the child's life.
I acknowledge that in considering the matter under s.60CC(3)(c), and also the matter under s.60CC(3)(i), the matters set out in ss.60CC(4) and (4A) must be taken into account. I am satisfied that each of the parents have taken appropriate opportunities for involvement in the child's life and facilitated the involvement of the other parent, subject to the decision to move to Ballina and the question of child support.
I cannot make any findings, ultimately, in relation to the situation concerning child support, because of the state of the evidence, other than that the father has not paid the due amounts by the due dates.
In relation to the move to Ballina, I am not satisfied, on the evidence, that the mother unilaterally changed the child's place of residence to Ballina without some reason for believing that the father acquiesced, at the very least, in that move taking place, and I have given my reasons why that is so, namely, the father making possessions of the child available well in advance of the move to be sent ahead to Ballina without demur or complaint.

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

There is nothing further that I can say in relation to this consideration, beyond what I have said in relation to the previous consideration.

The likely effect of any changes in the child's circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person including any grandparent or other relative of the child with whom he or she has been living (s.60CC(3)(d))

This, in large measure, is the nub of this matter. I have acknowledged that the child remaining, as the mother proposes, in Ballina will come at some cost now and into the future to the type of relationship the boy might otherwise have with the father if they were living closer together. This is indicated by the Family Consultant in passages of the report that I have already quoted. On the other hand, again, in passages of the Family Report I have already quoted, the effect, as it were, vicariously upon the child, in the form of the effect upon the mother of being required to move back to Sydney, cannot be ignored either.
These effects, to some extent, cannot be empirically measured. They are both negatives for the child, and ultimately, I am not satisfied that the evidence establishes that one is of greater detriment, or likely to be of greater detriment to the child, than the other. In other words, the detriment to the child of the adverse impact upon his relationship with his father if he remains in Ballina, in my view, is no greater or less than the adverse impact upon the child of the disappointment and perhaps frustration that the mother would feel at being required to move back into the Sydney metropolitan area and, as she would see it, be again under the control of the father. Otherwise, the effects of the changes involved in each of the parent's proposals, in my view, are largely neutral.
As to the mother's ability to secure accommodation if she were to return to Sydney, the evidence ultimately - as I think I have already alluded to - does not permit the Court to be satisfied either positively that she can, or positively that she cannot, afford that accommodation. The evidence in each of the parties' cases is unfortunately very thin indeed in relation to the actual cost of appropriate accommodation in the area that the father refers to.
However, I do note, in material submitted in the mother's own case of internet searches that she conducted last night, being results one to 10 of 126 results only, that it includes one accommodation described as a "self-contained two-bedroom granny flat" which is at exactly the same rent that the mother currently pays. Otherwise, the rent on the two pages that the mother has put into evidence for these 10 properties, ranges between a low of $370 and a high of $580.
The difficulty that I have with this evidence, as in fact I had with similar evidence that the father put in of searches he had made as at February this year, is that neither party gives any indication as to the search parameters that they set in conducting their searches. Further, it seems - certainly in the case of the mother - that only a small portion of the search results was put into evidence. There is no explanation for that. Similarly, with the father, he appears to have put into evidence eight only of 18 results on a search for “[H], Parramatta and [B], [N], and [D], [P]”. That, of course, does not, on the face of it, include a number of suburbs that he says would be caught by the Order that he seeks, and includes at least one that is not caught by his definition of the [H] district.
Otherwise, the evidence, I am satisfied, establishes that the mother might reasonably expect to find accommodation in the Sydney area, whether, and precisely where, that might be in any of the suburbs that the father identifies as being places he would wish the child to return to is something the evidence does not establish.
The mother's own case is that she is a very highly regarded employee with her current employer, who spoke of her most glowingly, and added additional superlatives to the type of reference that he would be prepared to give her to even those that the father sought to attach in his cross-examination of the employer.
Doing the best I can, then, on that evidence, in considering s.60CC(3)(d), I will simply proceed upon the basis that it is likely that the mother could secure employment. There is no evidence sufficient to establish, to my satisfaction, that she would not be able to obtain employment sufficient to meet rent, in light of the figures that she herself puts. So far as the $270 per week granny flat is concerned, as I understand it counsel for the mother is not conceding that this is suitable accommodation, but it is the mother's own evidence, the result of searches she herself made. She did not indicate the parameters she set for her search, and it is not explained why she puts into evidence the cost of accommodation which she through her counsel does not concede is suitable accommodation.
As I understand it, she concedes she needs two-bedroom accommodation. The granny flat is described as “a good sized two bedroom self-contained granny flat offering built-in wardrobes, a combined lounge/dining area, and a great sized kitchen, single car port with yard space, electricity and water included in the rent”.
It is not explained anywhere in the evidence why that is not suitable accommodation. It being a part of her own evidence, and it being exactly the same rent that she currently pays, I am satisfied the mother could afford suitable accommodation in Sydney, and I note that it is in [B], and I am therefore satisfied, on her own evidence, that she could afford suitable accommodation within the areas that the father seeks the mother return to.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis (s.60CC(3)(e))

The father's case, as I understand it, is that if the child remains in Ballina, the quality of his relationship with his child will suffer, and there is support for that view in the Family Report. However, this particular consideration is not directed to maintaining the optimum relationship, or even the former relationship. It speaks of maintaining personal relations and direct contact with both parents on a regular basis, and the mother's proposals do entail that, albeit that it will, on the evidence of the Family Consultant, come at some reduction in the quality of the father-child relationship over time.

The capacity of each of the parents and any other relevant person to provide for the needs of the child including emotional and intellectual needs (s.60CC(3)(f))

I do not understand, from the way that the matter was conducted in the cross-examination, or in any submissions that have been made, that this matter is significantly in issue. I do note, of course, the observations of the Family Consultant, that the child’s relationship with the mother is the closer parental relationship, and the evidence that when significantly distressed after the interview with the Family Consultant, it was the mother that the child sought solace from, rather than the father. That does not mean that the father is not able to fully meet the child's needs, including his emotional and intellectual needs, and I note, of course, that when the mother moved out of her rented accommodation at [N] after separation, [M] moved in to live with the father. Certainly, she was then an older child than [X] is, but that nonetheless confirms, to my mind, that there is no serious issue about parenting capacity.

The order least likely to lead to further litigation (s.60CC(3)(l))

I cannot see that one order is more or less likely than another to lead to the institution of further proceedings in relation to the child.

The remaining considerations in s.60CC(3)

In my view the remaining considerations in s.60CC(3) are not relevant.

Assessment of the parenting options

I turn then to consider the various parenting options, having regard to these relevant considerations.
Under s.65DAA, the Court must consider an equal time arrangement, as there will be an equal shared parental responsibility Order. This is the arrangement the father seeks. That will certainly provided the maximum opportunity for the child to be involved on a daily basis with each of his parents, and for them to be involved on a daily basis in his life. That will provide an opportunity to maximise his relationship with his father.
On the other hand, that would not seem to reflect what the boy himself appears to want. Whilst he wishes to have some continuing and close involvement with his father, his expressed wish is to live with his mother, albeit in Sydney. Further, I take account of the fact, as I have said, that the move to Sydney that such an arrangement would entail, has some negative aspects so far as the effect upon the mother, and through her, upon the child, is concerned, and I found that the adverse effect upon the child's relationship with the father, if he remains in Ballina, is no greater or less than the adverse effect upon the child of having to move to Sydney.
Whilst an equal time arrangement would provide some greater involvement with the father, not only would it not seem to be according to what the child wants, but it may also come at some cost to his relationship with his primary attachment figure, as I infer it to be, from the fact that he sought out his mother's solace when distressed. I also note the Family Consultant’s reasons, which I accept, for not supporting an equal time arrangement.
The alternative of the child living in Sydney with the mother and spending time with the father, as suggested by the Family Consultant, would more accurately reflect the child's wish. It would provide a greater opportunity than if the child remains in Ballina to have more involvement with the father, for example, by mid-week time during school term, as the Family Consultant has recommended. But, again, it would come at the cost to the child through the mother of the effect of being forced to return to Sydney that such a regime would entail.
The proposals of the mother would remove the adverse effect potentially on the child, through her, of a forced relocation. It would come at a cost to the quality of the current relationship between the father and the child, but it would not destroy it. Provided the father and the mother can afford the travel, the father and the child would be able to maintain almost the same degree of time that the recommendation of the Family Consultant entails on the basis of the mother and the child returning to Sydney.
However, there are other negatives highlighted by the Family Consultant. At para.25, as I have already quoted, she says that if [X] remains in Ballina:
As [X] grows older and approaches and enters adolescence it will become increasingly difficult for the two to maintain the significant and meaningful relationship which is so vital for the child's development …

Decision

This indeed is a finely balanced case. Counsel for the mother put that this is not a relocation case. Whether it is or it is not, it remains a parenting case to be determined by reference to the relevant considerations under s.60CC in determining where the best interests of the child lie. It would clearly appear that none of the options presently on the table are ideal. All of them have problems.
If the child were in Sydney and spending equal time with the father, there are the question marks as to the practicalities of the transport of the child between the parents' homes. There is the difficulty that the lack of proper communication and the level of conflict between the parents would create, as referred to by the author of the Family Report, and it may come at some cost to the child's relationship with his mother.
Living in Sydney with the mother, and spending alternate weekends, overnight time each week and half school holidays with the father would provide something akin to what had been in place before the move to Ballina, and would provide a good opportunity for the father and child relationship to continue, but at some cost to the day-to-day primary parenting from the mother, because of its likely effect upon her and, again, it may, so far as the mid-week time is concerned, give rise to some practical difficulties, depending upon where the mother might ultimately settle.
The option of the mother remaining in Ballina means that, subject to being able to afford the travel, the child may spend very similar time with the father to that recommended by the Family Consultant upon a relocation to Sydney, but at the cost, over time, of that time regime becoming more difficult to sustain as the boy develops his own identity and his own interests outside the family home.
In relation to that last point, I take into account that the child’s ability to maintain a meaningful and close relationship with the absent parent with a reduced frequency or intensity of time increases as the child grows older. A very young child, particularly an infant or toddler needs frequent involvement with an otherwise absent parent to maintain a recollection of that parent and therefore enable the development of the relationship with that parent. As the child grows and matures, the ability to retain a memory and recollection of the parent and the enjoyable times spent with that parent increases as, in fact, does the ability to maintain a relationship by communication that does not involve face to face time, including, for example, telephone.
I note, of course, [X]'s current age and that the matters referred to by the author of the Family Report, particularly in paragraph 25, the last sentence, are referring to the child approaching and entering adolescence. Whilst that is not very far away, I am not satisfied that the child approaching and reaching that stage, and having increasing interests that he would wish to pursue perhaps independently of each parent, means that a close and meaningful relationship cannot be maintained.

Doing the best I can on the evidence as it currently stands, therefore, ultimately I am satisfied that the arrangement that the mother proposes is the one which will best, out of the options available, promote the child's interests. Put more correctly, perhaps, it is the one which I am satisfied entails the least negative impact upon the child of the various options, they all having negative features. Ultimately, that is the Order that I will make.
For the mother's proposal is predicated upon the parents being able to afford the travel it would entail. The mother's case is that she cannot afford to continue the fortnightly travel. The father's case is that he cannot afford even half the cost of travel on even one occasion, but that is a bald assertion. He gives no evidence, as I have already averted to, as to his financial circumstances sufficient for the Court to be satisfied that that is, in fact, so.
I take account of the fact that he has the two eldest children living with him. I take account of the fact that he obviously, therefore, has not only accommodation expenses for himself and them, but also the further support commitments for himself and those children. I have evidence in relation to the level of his gross income. I also have some evidence in relation to what he has suggested his net income was, but I have no evidence in relation to the actual amount of his various items of expenditure sufficient to be satisfied that he could not afford to contribute towards the cost of the boy's travel to spend time with him. The mere fact that he refused to do so in the past does not prove that he cannot do so. In those circumstances, when I have assessed the options based upon the child being able to spend alternate weekends with the father if he remained in Ballina, I have done so on the basis that the evidence is insufficient for me to be satisfied that the father could not afford the cost of that travel. It also must be said that the evidence is insufficient to satisfy me that he could, where this, clearly, was a significant issue in the case. The father's failure to proffer that evidence and enable the Court to be satisfied of it is troubling.
For these reasons, as I say, I am satisfied that the orders I should make are those sought by the mother.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of HALLIGAN FM

Associate: Deanne Bush

Date: 15 October 2008