WENDLAND & WENDLAND

FEDERAL CIRCUIT COURT OF AUSTRALIA

WENDLAND & WENDLAND

[2017] FCCA 2295

Catchwords:

FAMILY LAW – Children – residence – application to remove child interstate – competing proposals – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 64B, 65D, 65DAA, 65DAB

Godfrey & Sanders [2007] FamCA 102

Applicant:

MS WENDLAND

Respondent:

MR WENDLAND

File Number:

BRC 9284 of 2016

Judgment of:

Judge Vasta

Hearing dates:

6 and 7 September 2017

Date of Last Submission:

7 September 2017

Delivered at:

Brisbane

Delivered on:

8 September 2017

REPRESENTATION

The Applicant appearing on her own behalf

Counsel for the Respondent:

Ms Bertone

Solicitors for the Respondent:

PARRY COATES FAMILY LAW

ORDERS

BY CONSENT ON A FINAL BASIS THE COURT ORDERS:

That pursuant to section 79 of the Family Law Act, the assets, liabilities and superannuation benefits of the parties be divided as outlined below:

General Property

That save as otherwise provided for in these orders, the wife shall be entitled, to the exclusion of the husband, to all other property, chattels and resources of whatsoever nature and kind in her possession or in respect of which the wife has an actual beneficial and/or contingent interest as at the date of the orders, including but not limited to:
(a)all household contents in her possession, save for items in the list at order 27 3 herein;
(b)funds held to her credit in any bank, credit union or savings account;
(c)annual leave and/or long service leave entitlements;
(d)Property A and the associated mortgage;
(e)any superannuation to which she is entitled.
That the wife make available the following items for collection by the husband and for the purposes of the collection the husband will give the wife 14 days’ notice in writing of the Saturday he will attend at the Property B property (between 1pm and 5pm and when the child is ordinarily with her mother):
(a)Golf Equipment
(b)Gym Equipment
(c)Tools
(d)(omitted) television
(e)Husband’s clothes, personal documents, books and photographs;
(f)Husband’s mountain bike.
That save as otherwise provided for in these orders, the husband shall be entitled, to the exclusion of the wife, to all other property, chattels and resources of whatsoever nature and kind in his possession or in respect of which the husband has an actual beneficial and/or contingent interest as at the date of the orders, including but not limited to:
(a)all household contents in his possession;
(b)funds held to his credit in any bank, credit union or savings account;
(c)annual leave and/or long service leave entitlements;
(d)Engagement and wedding ring;
(e)any superannuation to which he is entitled.
That within 21 days of the date of this Order, the wife sign all documents submitted by the husband to transfer to the husband the registration and the wife's interest in the (omitted) motor vehicle registration number (omitted).

24 Property B

That within 60 days of the date of these Orders, the husband and wife do all things and sign all documents necessary to transfer to the wife all of his right title and interest in the property situated at Property B, (the Property B property) more particularly known as (omitted).
That contemporaneously with the transfer in Order 32 herein, the wife do all things and sign all documents necessary to refinance into her sole name mortgage number (omitted) held by (bank omitted) and secured over the Property B property.
Contemporaneously with the transfer in order 32 herein, the wife pay to the husband the sum of $30,000 to a bank account nominated by him.
In the event that the Wife is unable to refinance the mortgage secured over the Property B property in accordance with these Orders, the Husband retain all of his right title and interest in the said property and remain solely responsible for all encumbrances attached thereto.
In the event that the Wife is unable to refinance the mortgage secured over the Property B property in accordance with these Orders, the Wife vacate the Property B property within 90 days of the date of these Orders (being 30 days after the wife has the opportunity to refinance the mortgage secured over the said property).
From the date of these Orders until the transfer of the Property B property pursuant to order 32 herein or until the Wife vacates the property pursuant to order 36 herein, the Wife will pay the mortgage instalments directly to the (bank omitted) Bank in the Husband’s name and secured over the Property B property. From the date of these Orders until the transfer of the Property B property pursuant to order 6 herein or until the Wife vacates the property pursuant to order 10 herein, the Wife will pay the mortgage instalments directly to the (bank omitted) Bank in the Husband’s name and secured over the Property B property.

General Property

That save as otherwise provided for in these orders, the wife shall be entitled, to the exclusion of the husband, to all other property, chattels and resources of whatsoever nature and kind in her possession or in respect of which the wife has an actual beneficial and/or contingent interest as at the date of the orders, including but not limited to:
(a)all household contents in her possession;
(b)funds held to her credit in any bank, credit union or savings account;
(c)annual leave and/or long service leave entitlements;
(d)any superannuation to which she is entitled.
That save as otherwise provided for in these orders, the husband shall be entitled, to the exclusion of the wife, to all other property, chattels and resources of whatsoever nature and kind in his possession or in respect of which the husband has an actual beneficial and/or contingent interest as at the date of the orders, including but not limited to:
(a)all household contents in his possession;
(b)funds held to his credit in any bank, credit union or savings account;
(c)annual leave and/or long service leave entitlements;
(d)any superannuation to which he is entitled.
That within 60 days of the date of these Orders, the wife do all things necessary to refinance the (omitted) joint loan into her sole name and indemnify the husband and keep him indemnified with respect to the loan.
If the husband retains the Property B property, he will refinance the (omitted) joint loan on same terms as Order 14 40.

ON A FINAL BASIS THE COURT ORDERS:

That the Child be permitted to relocate to wherever the Mother is posted by the Australian Defence Force.

BY CONSENT UNTIL FURTHER ORDER THE COURT ORDERS:

Parental Responsibility

That the mother and the father have equal shared parental responsibility for the child [X] born (omitted) 2013 (“the child”) and they shall consult with each other about all matters concerning the child’s long-term care, welfare and development including but not limited to matters concerning:
(a)Health and medical needs;
(b)Education including selection of the school the child is to attend;
(c)Religion; and
(d)Living arrangements in terms of any changes thereto that would be significantly more difficult for the child to spend time with the other parent.
The parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)Each shall inform the other parent about the decision/s proposed to be made;
(b)Each shall consult with the other with the view to reaching terms upon which they may agree; and
(c)Each make a genuine effort to come to a joint decision with the other parent.
Notwithstanding the provisions of the above orders:
(a)The father shall be responsible for the day to day care, welfare and development of the child at all times when the child is living with or spending time with him; and
(b)The mother shall be responsible for the day to day care, welfare and development of the child at all times when the child is living with or spending time with her.
In the event that an agreement is not reached in relation to any matter concerning the child, the parents shall take all reasonable steps to participate in either mediation or a Family Dispute Resolution Conference to attempt to resolve the matter prior to any application being made to a Court having jurisdiction in these matters.

Time during School Holidays

That unless otherwise agreed, during the Christmas school holiday period, the child will spend time with each of her parents for one half of the holidays in a week about arrangement as follows:
(a)Subject to the special weeks at Christmas (order 8 24 herein); and
(b)Ensuring that the child is not away from the mother or the father for more than one week at a time (7 nights), calculating the weeks having regard to the parent with whom the child is spending Christmas and New Year with; and
(c)the mother to have the first week of the holiday period in odd numbered years from after school on the last day of term 4 (Friday) until 5pm the following Friday and alternate each week thereafter; and
(d)the father to have the first week of the holiday period in even numbered years from after school on the last day of term 4 (Friday) until 5pm the following Friday and alternate each week thereafter; and
(e)the parent with whom the child did not spend the last week of the holiday period with, will have the first weekend of time with the child in term 1.
For one half of all other school holiday periods for the school which the child attends, being with:
(a)the mother for the first half in even numbered years and each alternate year thereafter;
(b)with the father for the second half in odd numbered years and each alternate year thereafter;
(c)the commencement and conclusion times for this Order will be from after school on the last day of the school term or at 5pm at the mid-point of the holiday or 5pm on the day before the commencement of the new school term.

Time on Special Occasions

Anzac Day

Unless otherwise agreed between the parents, the child spend Anzac Day with her mother from 5.30pm the 24 April until 5.30pm Anzac Day (if she is not ordinarily living with her mother pursuant to the Final Orders).

Christmas

Unless otherwise agreed between the parents, the chid spend time with each of her parents at Christmas as follows:
(a)With the mother from 9am 23 December until 9am 29 December commencing 2017 and each alternate odd year thereafter; and
(b)With the father from 9am 29 December until 9am 4 January commencing 2017/2018 and each alternate odd year thereafter; and
(c)With the father from 9am 23 December until 9am 29 December commencing 2018 and each alternate even year thereafter; and
(d)With the mother from 9am 29 December until 9am 4 January commencing 2018/2019 and each alternate even year thereafter.

Birthdays

Notwithstanding any other order, unless otherwise agreed, the child will spend time:
(a)On the child’s birthday, if it falls during the school week from after school to 6.30pm with the non-live with parent and if the day falls on a weekend, from 1pm to 5pm with the non-live with parent.
(b)On the mother’s and father’s birthday as agreed and failing agreement, if it falls during the school week from after school to 7.30pm with the birthday parent and if the day falls on a weekend, from 2pm to 7.30pm with the birthday parent.

Mother’s Day and Father’s Day

(c)Time with the father from 9am until 5pm on Father’s Day;
(d)Time with the mother from 9am until 5pm on Mother’s Day;

Easter Special Days

(e)With the father during the Easter period from after school (or 4.30pm) Easter Thursday until 4.30pm Easter Monday in even numbered years and each alternate year thereafter;
(f)With the mother during the Easter period from after school (or 4.30pm) Easter Thursday until 4.30pm Easter Monday in odd numbered years and each alternate year thereafter.

That for holidays and special days, the scheduled time provided for in these Orders shall be suspended and resume at the conclusion of that period.

Communication

That the non-live parent be at liberty to telephone, FaceTime, Skype or text the child each day between 6pm and 7pm, or any other time as agreed between the parents in writing.

Changeover

Unless otherwise agreed between the parents, where changeover cannot occur at the child’s school or day care, the parent who is due to collect the child will collect her from the other parent’s residence at the commencement time.

Exchange of Information

That the father and the mother shall:
(a)Keep the other parent informed at all times of their residential address, landline and mobile telephone numbers, and email addresses;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.
The parents shall communicate by way of email or text messages.
This Order is an authority for the mother and father to obtain from the child’s schools, copies of school reports, school photographs and any other document regarding the academic progress or achievements of the child and notification of events such as parent/teacher events, sports day and concerts.
This Order is an authority for the mother and father to obtain information from any treating medical practitioner, hospital and/or health care professional concerning the health of the child.
That the parents undertake to the Court that whilst the child is in their care they will not denigrate the other parent or their spouse or partner in the hearing or presence of the child and will use their best endeavours to ensure that others do not denigrate the other parent or their spouse or partner in the hearing or presence of the child.

Other Matters

That the mother and the father (and significant others) be at liberty to attend sporting, social, school events with the child or which they currently are attending or participating in.

Overseas Travel

Each parent be permitted to travel overseas with the child subject to:
(a)Providing written notice to the other parent no less than 30 days prior to the departure date.
(b)Notifying the other parent of the flight itinerary, address, and at least one telephone number of any place/s where the child will be staying during the overseas travel no less than 14 days prior to the departure date.
(c)Obtain the written consent of the other party should the international travel interfere with the time the child is scheduled to spend with that other party.
(d)No less than 3 days prior to the intended departure, the travelling parent will provide to the other parent copies of the child’s tickets and final travel itinerary.
(e)Obtaining the written consent of the other party should the destination hold an alert level on the Australian Government Travel Advisory Index of Level 3 – “Reconsider your need to travel” or Level 4 – “Do not travel”.

Passport

That pursuant to section 11(1)(a) of the Australian Passports Act 2005 and these Orders, the parents’ consent to the ~~children~~ child, [X] born (omitted) 2013, travelling outside the Commonwealth of Australia and having current Australian passports.
The parents will do all acts and things and sign all documents necessary to make application to the Australian Passport Office (or such other Department or instrumentality administering the Australian Passports Act 2005) within 7 days of receiving the document, to enable [X] born (omitted) 2013, to be issued with an Australian passport (travel document).
That in the event that either parent refuses or neglects to sign any document necessary to issue [X] born (omitted) 2013 with an Australian passport despite the fact that by these Orders the parents have consented to an Australian passport (or travel document) being issued, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian passport (travel document) pursuant to section 11(2)(a) of the Australian Passports Act 2005.
The parents agree to share equally in the costs associated with the passport applications and/or passport renewals for the child.
The father will be responsible for holding the child’s passport.
Upon receipt of the itinerary and return tickets for the child, the father will forthwith release to the mother the passport for the child.
Within 7 days (or at the next changeover) the mother will return the child’s passport to the father where he will hold the same until or unless overseas travel occurs subject to compliance with these Orders.

UNTIL FURTHER ORDER THE COURT FURTHER ORDERS:

That the parties are to discuss between themselves arrangements for the child to spend time with the Father.
(a)That in the event no agreement can be reached the parties are to file and serve proposals as to the time the child spend with the father by no later than 4:00pm on 20 November 2017.
That this matter be adjourned for mention only at 9:30am on 21 November 2017 in the Federal Circuit Court of Australia at Brisbane.

NOTATION:

A.That pursuant to section 65DA(2) of the Family Law Act1975 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 “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules2001 to reflect changes to the order numbers referred to in Orders 2(a), 11, 15, 21(a) and 36.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9284 of 2016

MS WENDLAND

Applicant

And

MR WENDLAND

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

This is a parenting matter. The mother Ms Wendland was born on (omitted) 1978 making her currently 39 years of age. The father Mr Wendland was born on (omitted) 1984 making him currently 33 years of age.
The father lived in New South Wales and had finished school after grade 12. He is currently employed as a (occupation omitted) with (employer omitted) in the (omitted) area. The mother has been a member of the Australian Defence Force (“ADF”) since she was 20.
In 2011, the father was living in Town H and the mother was posted to the (omitted) base. The parents attended the same gymnasium in Town H and in mid-2012 commenced a casual relationship.
It was expected that the mother was going to be posted to Town Y at the end of 2012. Before that posting could occur, the mother found out that she was pregnant and upon telling the father of this news, she and the father began cohabitating.
On 7 March 2013, [X] was born. She is known as [X].
At the time of [X]’s birth, the father worked full-time in the (omitted) industry whilst the mother took time off from the ADF before returning to part-time duties after [X]’s birth. [X] was in on-base day care whilst the mother was on duty and the paternal grandmother also took regular care of the child at this time. Obviously the posting to Town Y was delayed and then eventually cancelled whilst the mother was on maternity leave and then returning to part-time duties.

Because the mother was a member of the ADF, the spectre of a posting to somewhere other than Town H was always a possibility. I accept that while the mother and the father were together that the plan was that the family as a whole would relocate to wherever the mother was posted.
In late 2014, the mother and the father married. Around this time, the father began working night shifts. In late 2015, the father suffered a back injury and was off work for a period. This coincided with a “growing apart” between the mother and the father.
The parents describe themselves as being emotionally separated around this time. The physical separation occurred around the time that [X] turned three, that is, 2016.
Whilst there is some conjecture as to the actual timeline, the mother knew that she would have another posting in January 2017. Because of the separation, the father was understandably now no longer willing to relocate if the mother were posted away from Town H. The mother and father were trying to work out what were the best arrangements that they could make for [X].
The father has complained to me in this Court that he did not spend overnight with [X] until August 2016. There have been instances since the separation where communication between the parents has been less than ideal, however it does seem to me that, by and large, the parents have been able to discuss and to agree of much of what is in the best interests of [X].
Unfortunately, the spectre of the mother being posted to another ADF base has overshadowed all other aspects of the co-parenting relationship. By mid-2016, the mother knew that her posting for January 2017 was to Town G.
Even though the mother and father attended a mediation and other means of resolving their differences, the father did not want [X] to relocate with the mother and the mother wished to relocate to Town G with [X]. The mother launched the present proceeding in September 2016 and the parties appeared before me in late October 2016.
On that first Court date, they reported that they would fund a family report to be compiled by [the family report writer]. They expected such a report to be ready by December 2016 and informed me that the only issue between them was the issue of relocation.
I set the matter for trial on 21 December 2016. On 21 December 2016, I was told that the parties did not want a trial, but rather an interim hearing to determine whether the mother could relocate to Town G. The mother’s case was based on an assumption that if she did not report for duty in Town G in January 2016, she would be AWOL and therefore dismissed from the ADF.
I heard evidence only from the father on that day and then made an order that the mother was not to relocate [X] to Town G. I did not accept that the mother would necessarily be dismissed from the ADF for not taking up the post because of the order I had just made. I made orders that then regulated the contact that the child would have with the father and the mother until further order.
At present, the child lives with the mother. The father spends time with [X] every afternoon from Monday to Thursday and that is from after day care until dinner time. The father also spends every alternate Wednesday night with [X] and each alternate Friday and Saturday night with [X], returning her to the mother at 5 pm on Sunday.
The mother is seeking final orders that would allow her to relocate wherever the ADF ends her with [X]. The father is seeking orders that [X] not be able to relocate and, that if the mother does relocate with the ADF, that [X] live primarily with him. If the mother does leave the ADF and lives in Town H, he proposes a timetable that would eventually lead to equal time.
This is a difficult matter because the proposal by the mother is still somewhat inchoate. Unlike the interim hearing where there was a definite proposal to relocate to a specific place, this hearing is about whether the Court would, in essence, write the mother a blank cheque to relocate to wherever the ADF sends her. This is because most of her postings will be for a period of approximately two years and it is not practical nor is it in the best interests of [X] for there to be litigation every time the mother has been given notice of a new posting.
Both parents gave evidence before me. While the real issue was whether relocation was in the best interests of [X], the father seemed to concentrate on the failings of the mother as a parent. In her evidence and in her affidavits, the mother does not truly criticise the father as a father.
She has praised the father’s abilities as a parent and has lauded the relationship that he has with [X]. She has also praised the relationship between the paternal grandmother and [X].
The father, however, consistently criticised the mother over little things. When the criticisms were analysed, they did not amount to much. There was criticism over an incident that occurred at Christmas time. While the mother accepted that she was just as much to blame as the father, the father refused to accept any true responsibility for what happened. There was criticism over what happened on the child’s birthday earlier this year.
The orders that I have made in December 2016 clearly said that the parents were to spend time with [X] on her birthday as they were able to arrange. There was no arrangement made and I accept that the arrangement for the Tuesday was that the mother would pick the child up at the park.
When the mother arrived to pick the child up, there was an argument between her and the father about [X] coming to his place for birthday cake. Even though this was not the arrangement, the mother did acquiesce eventually because she saw it was in the best interests of her child for the child to go with the father.
Whilst this incident could have been handled far better by the mother, it arose because the father had not made any arrangements with the mother, as the orders had provided that he do (or the normal arrangements would apply). Instead of insisting that [X] accompanying her home straight away, the mother appropriately allowed [X] to go home with the father.
To my mind, this was an illustration of how the mother has been thinking in a child-focused manner.
The mother has ensured that there is daily contact by phone between [X] and her father. If there are calls that are missed, the mother ensures that the phone call is returned. The mother encourages [X] to talk to her father and there have been a number of random phone calls where [X] has simply wanted to speak to her father. [X] has also sent a number of emojis to her father by text message outside of the times for telephone contact.
The mother has looked after the child’s health and ensured that the father is kept appraised of any developments in [X]’s health. The father acknowledges this and has testified that he has not spoken to the GP who looks after [X], notwithstanding that he is allowed to do so.
The parents were able to talk about the school to which [X] would attend and come to an agreement about that. The mother gave the father enrolment forms and he filled out those forms. [X] is enrolled at (omitted) College next year. The father said, in evidence, that after the agreement to enrol [X], but before he was given the enrolment forms, the mother had told him that the child would not be enrolled at the college because the child would be moving with her in the 2018 year.
Such evidence was not in the father’s affidavit, nor was it the subject of cross-examination of the mother. I reject this evidence of the father and conclude that it was done solely for the purpose of blackening the name of the mother before me.
The father also complained that the mother had never allowed him to look after [X] when she, the mother, was unable to do so. He complained to me that he was not the “first port of call” and said to me that he had “never been any port of call”. I clarified with him whether he was saying that he has never looked after [X] when the mother could not do so, and he said that this was the case.
However, in paragraph 17 of his trial affidavit, the father says “in or about June 2017, Ms Wendland travelled to Sydney for three nights for work and [X] stayed with me”. The father then said that this occurred because he found out the mother was going away and he told the mother that he was very disappointed that he would not be the one looking after the child. He said that the mother then said words to the effect “I will let you look after the child if you do not put in an affidavit that I am a bad mother for leaving my child for three days.” Again, this information is not contained in his affidavit nor was it the subject of any cross-examination of the mother.
In a very bizarre submission, Ms Bertoni, who was Counsel for the father, attempted to excuse this blatant contradiction by submitting to me that the father was talking about the mother not asking him to look after the child, whereas this incident occurred because the father asked the mother if he could look after the child. Quite rightly, I criticised Ms Bertoni for such a submission.
It was quite obvious that the father again was attempting to blacken the name of the mother.
It does seem to me that the mother is very cognizant of ensuring that the father does have a proper relationship with [X], whereas the father is seeking to paint the mother as a person who is manipulative of him. Having seen how the father operates, I accept the evidence of the mother where she says that the father has taunted her, using phrases such as, “We know what the judge thinks of your priorities” and “We know what [the family report writer] thinks of your parenting abilities”.
It does seem to me that the father has approached this litigation as a battle between he and the mother which he is now determined to win. It seems to me that the mother has approached this litigation as a chance for someone other than she and the father to make a decision as to what is in [X]’s best interests.
I have had the advantage of two reports and viva voce evidence of [the family report writer]. [the family report writer] the family consultant has thoroughly canvassed all the issues and his reports and evidence have been of great assistance to me.
He does not make any firm recommendations, simply because there are too many unknowns about where the mother would relocate and what the situation would be at that place or places. [the family report writer] commented that apart from specific instances surrounding the Christmas and birthday, those two incidents I already mentioned, the parents do seem to be able to reach consensus on many issues since I made the orders on 21 December 2016.
[the family report writer] commented that [X] had a “rich relationship landscape” and that this helps the child establish “who she is” and “what is her story”.
[the family report writer] said that the factors that influence the security of a child are “faces, places and paces”. That is, in effect, familiarity with persons around her who are not only there but also do things for her; a familiarity with her home and other significant places and buildings; and, finally, a routine. If those things change, then uncertainties are created and those uncertainties may erode the security of the child.
[the family report writer] commented that if [X] were to move, that would mean that there will significant gaps in her relationship landscape and it would seem that the only person who will be able to “patch” those gaps is the mother; and the question is whether the mother could actually perform those duties.
In his report, [the family report writer] noted the following in paragraphs 94 and 95:
“In the event that [X] relocated to Town G with Ms Wendland in early 2017, or relocates before or by earlier 2019, Mr Wendland would be challenged to consider whether or not to also maintain his care opportunities with his daughter. This would entail him leaving his paid work, family, partner, housing, and long-term Town H lifestyle and connections, and to locate or create new housing, paid work, relationships and a lifestyle. It seemed reasonable to suggest that an unsought for relocation could adversely affect his global functioning with the removal of his significant structural and relationship connections and hence his parenting of [X].
It was also proposed that it was possible that in the event that Ms Wendland were allowed to relocate [X] and Mr Wendland followed, he may be in a similar situation at a future time if and when Ms Wendland had a further posting.
In late 2016 it was suggested that in the event that Ms Wendland were not permitted to relocate [X] to Town G and the girl was in Mr Wendland’s primary care in Town H, she, that is the mother, would be challenged to consider whether or not to forfeit her own relocation and ADF position in order to maintain her care opportunities with her daughter. This would entail her leaving her secure, established career while preserving her long-term Town H housing lifestyle and/or connections. It seemed reasonable to suggest that an unsought for cessation of her ADF career could adversely affect her global functioning with the removal of her established [ADF] structure and relationship connections, and hence, her parenting of [X].”
Those two paragraphs do, in my view, really encapsulate what this trial has been all about. I pause to add that, at this time, there has now been a resolution of the property matters. At beginning of the relationship, what had occurred was that the mother, who had an investment unit in (omitted), left that property and the two of them moved to a property in Property B. That property is in the father’s name.
When the separation occurred, the father moved out of that Property B property and the mother has continued to live there; the parents coming to that decision because they both felt it was in [X]’s best interests to keep the familiar environment to which he has become accustomed.
The father has been living with his mother since that time and has now become involved with another woman, though that relationship is still in the rather early stages. The mother has not re-partnered and has maintained her position with the [ADF].
At paragraph 103 [the family report writer] says this:
“It was suggested that it seemed reasonable to acknowledge that such shifts in physical and lifestyle locales, peer friendships, schools, housing and routines may assist [X] to develop resilience, adaptability and flexibility, or they may also present her significant adjustment challenges which erode or compromise her functioning. In a nutshell, the court has to consider whether it will be in the best interests of [X] to allow her to relocate if the mother is posted to somewhere other than Town H.
The real difficulty in making such an assessment is that [X] is still very much a blank slate. She is too young to really understand the enormity of what such a decision will mean. If it is that such a move would help develop resilience, adaptability and flexibility whilst maintaining the lifestyle that she has had, this may be in her best interests. But if such a move would mean that there were significant adjustment challenges which eroded and compromised the functioning, then this would not be in her best interests.”
The father has submitted that [X] has lived her whole life in Town H. She lived with her parents until the age of three. For the past 17 months, since the separation, she has seen her parents very regularly. She sees the rest of her extended family, including her ADF family, regularly. To suggest that she should be removed from this environment would not be in her best interests is a submission of the father. The father points to the fact that there is no plan of the mother because any move is still unknown.
As the mother points out, any move is not up to her and she has no say in where the ADF posts her. The father submits there is no evidence that the mother will move to any place, and at its highest, all the evidence shows is that the mother is posted to Town H until January 2019 and will then get another posting which may or may not be Town H.
The mother has consistently pointed to the fact that the current lifestyle that [X] enjoys is funded by her. She has not asked the father for any child support and since separation, the only financial support that the father has made has been keeping up the mortgage repayments on the matrimonial home, as well as, since January 2017, paying the outgoings such as rates and water of that property.
As alluded to before, the property settlement now means that that property becomes the sole responsibility of the mother and the father has been paid the sum of $30,000.00 as his share of the equity in that property. The mother is the one who pays for [X]’s food, clothing, education, extracurricular activities, and any other associated costs. There has now been, as I say, the property settlement. The mother now points to the fact that she alone will be financially supporting the child as a factor. She said quite candidly she does not expect the father to have to financially support the child given their disparity in income.
There is no suggestion that the father is not trying to meet his responsibilities in this regard, or could ever be thought by anyone to be anything other than someone who wants to help maintain the child. The fact is that it is the mother who has the disposable income and resources to actually do this. The father, in his work, is not earning a great income and the mother does not expect him to assist because, as she said, it would not be fair on him. However, the mother submits that this lifestyle will not be able to be maintained unless she remains in the ADF.
The father submits that this is a choice of the mother and that the mother has not even tried to see if there were other jobs for which her qualifications would mean she could be paid a similar income to what she is currently being paid. The mother also submits that for her to take another ADF posting and leave [X] with the father is not in the child’s best interests, and she would not contemplate doing such a thing.
After listening to all of the evidence, I find that it is likely that the mother will be posted to somewhere other than Town H in January 2019. She has been posted to Town H since 2010, and despite the urgings of the father, the simple reality is that she will have to make the choice of relocating to where is posted by the ADF or resigning from the ADF. I also find that it would not be easy to transition from the duties that she is performing in the ADF to comparable civilian duties.
Even if she could find comparable civilian duties, the question is would she be able to have the same security of tenure, remuneration, and still be able to live in the proximity of her house at Property B? I find that this is not a proposition that should be found to be a reasonable one; that is, I am of the view that it would be extremely difficult for the mother to make such a transition.
I find that if [X] is allowed to relocate with her mother, there will be significant changes to her life, and if [X] is not allowed to relocate with her mother, there will also be significant changes to her life because of the changes to the mother’s status and to her income.

Application of the Act

The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
Section 65D of the Act subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”) gives the Court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.

In determining what is in children’s best interests I must consider the matters set out in s.60CC(2) the “primary considerations” and s.60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s.60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s.60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
There are 14 “additional considerations” set out in s.60CC(3) which I will refer to later in detail in these Reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s.60CG).
I will also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.

Application of law to the circumstances of the case

I must now consider the application of the legal principles in the circumstances of this case, namely, the background facts and the findings that I have just made, and how these apply in determining what parenting orders are must likely to promote the best interests of [X].

Primary considerations – section 60B

Turning firstly to the application of the primary considerations namely;
a) the benefit to the child of having a meaningful relationship with both parents
b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
My conclusion as to these primary considerations are, in summary:
a)It is important to [X] that she has a meaningful relationship with both her mother and her father; and
b)There is no need to protect [X] from being exposed to the risk of family violence, harm or abuse.
My reasons for reaching those conclusions are as follows:
a)both parents to their credit acknowledge that it is important for [X] to have a meaningful relationship with the other parent, they both have a committed involvement as parents in [X]’s life, and
b)There is no evidence of either parent treating [X] with anything other than the upmost love and consideration.
I treat these primary considerations of my findings as being central to the structure of the orders I ultimately propose to make with respect to the best interests to [X]. Having made the finding that I have just made, s.60CC(2A) does not have any relevance here.

Additional considerations – section 60CC(3)

Going through the section 60CC(3) considerations seriatim, I find:
a)[X] is too young to understand what is happening and so has not expressed any views. I, therefore, do not take anything she has said into account.
b)I have looked at the nature of the relationship that [X] has with both her parents. I have also been very cognisant of the relationship that [X] has with her paternal grandmother. She is her only surviving grandparent, and [X] does have a very close relationship with her.
c)I have taken into account the extent to which the parents have actually made decisions about major long-term issues. This is especially so in the way in which the parents were able to choose a school with the child. Taking into account that the father has done all he can to spend as much time with the child as he can and the way in which both parents, but especially the mother, have facilitated the communication of the child with the other parent, those are matters that I have borne very much into consideration.
ca)I have already mentioned that the mother has taken on the lion’s share of the costs of the maintenance of [X], however that this is something that she has done quite willingly and with an acknowledgment as to the financial position of the father.
d)This circumstance has been at the forefront of my thinking. The changes that will be occasioned by any move by [X] are very significant on the father as well as the paternal grandmother and other extended members of the father’s family.
e)I have taken into account the practical difficulty and expense of [X] living away from the father. The problem is that it is unknown where [X] would relocate if I made such an order because the ADF have not yet informed the mother. This is compounded by the fact that such a posting for the mother may only have as little as 12 months effect. I have taken into account the mother’s offer that she would pay for the father to travel to wherever the posting is on four occasions a year during the school term so that the father can spend five consecutive nights with the child. The mother has said that she would vacate her residence and allow the father to have full access to the residence and her car for the duration of any stay. She would also facilitate the child spending half of the holidays with the father. Given the meagre wage that the father is now earning, the financial impost upon him would not be great, however the emotional impost is a different story.
f)I have taken into account the capacity of each of the parents, and any other persons, including the paternal grandmother, to provide for the needs of [X]. To this extent, I have taken particular notice of the manner in which the mother resolved the dispute on [X]’s birthday and allowed the child to spend time with the father, as well as her ensuring the phone contact is consistent and at whatever time [X] desires.
g)I have taken into account the fact that [X] is four and a half and, to use the words of [the family report writer], is discovering “who I am” and “what is my story”. As I will explain later, the fact that [X] will identify as the daughter of a woman who has made good and is a proud member of the ADF is an important consideration.
h)This circumstance has no relevance in this case.
i)I have spoken already about the attitude that both parents have had to the child and to their responsibilities as parents.
j)This circumstance has no application in this case.
k)This circumstance has no application in this case.
l)This hearing is almost a pre-emptive hearing. If the mother remains in the ADF, she will be subject to postings to places not of her choosing. These postings may last from one to four years. It cannot be that every time the mother has a posting that litigation must ensue. This is a question that needs to be answered and answered now: is the mother permitted to relocate [X] to wherever she is posted, or is [X] to remain in Town H?
m)I have taken into account all facts or circumstances that I think are relevant.

Parental responsibility

Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for them. The presumption does not apply, however, if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence.
In this case, having regard to the findings I have made and as it is not the case of the mother or father that the child needs to be protected from abuse or family violence, I would normally apply the presumption to order that the mother and father have equal shared parental responsibility.
In this case, as I will explain later, the parents have already agreed to this order.
Having made that decision, I am then required by s.65DAA(1) and (2) to consider whether to make orders that the child spend equal time and if not equal time, then substantial or significant time with each parent. The section provides:
Equal time
(1) If a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a) consider whether the children spending equal time with each of the parents would be in the best interests of the children;
(b) consider whether spending equal time with each of the parents is reasonably practical and;
(c) if it is, consider making an order to provide (or including a provision in the order) for the children to spend equal time with each of the parents.
Substantial and significant time
(1) If:
(a) a parenting order provides (or is to provide) that the child’s parents are to have equal shared parental responsibility for the child; and
(b) the Court does not make an order for the child (or children) to spend equal time with each of the parents;
the Court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parent is reasonably practical; and
(e) if it is, consider making an order to provide for the child to spend substantial and significant time with each of the parents.

Equal time

In this matter, whether [X] stays in Town H or is allowed to relocate, at this time, spending equal time is not practicable and it is not in her best interests. It may be that if [X] stays in Town H that equal time can be an eventual goal, but that is not the case at this point in time.

Substantial and significant time

As to whether I should order that [X] spend substantial and significant time with each parent, there is no dispute that such is not reasonably practicable. The question is whether it would be in [X]’s best interests to do so.
For a parenting order to involve a child spending substantial and significant time with a parent, s.65DAA requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays, and days falling outside those times.
It must allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child, and for the child to be involved in occasions and events that are of special significance to the parent.
In coming to my final conclusions, I have also been guided by the objects and principles set out in s.60B that I quoted earlier.
I have carefully considered all of the submissions that have been made. It does seem to me that if I accepted all of the submissions made of the father, it would be very hard to ever justify any child relocating from where the child grew up, especially if there is no risk to the child and especially if the presumption had not been displaced.
But Courts order relocations all the time, as long as such a relocation is in the best interests of the child. The main argument that the father advances is that his relationship with [X] will necessarily be diminished if relocation is allowed.
Godfrey & Sanders [2007] FamCA 102 was a case where a single judge of the Family Court constituted a Court of Appeal, following the decision of a then-Federal Magistrate. That case brought together all the relevant authorities in relocation cases. I do not propose to go through all that was said in that case, other than to adopt the ratio decidendi.
I accept that, in relocation cases, the best interests of the children remain the paramount consideration. On the issue of whether a relocation will affect the relationship between the children and the parent who will not relocate, at paragraph 36, His Honour said:
“Even if the move results in the diminution of quality of the relationship, what the legislation aspires to is to promote a meaningful relationship, not an optimal relationship.”
There is little doubt that allowing [X] to relocate will diminish the quality of the relationship between the father and [X]. There will be a loss if [X] moves away from Town H. On the evidence before me, I have no doubt that the mother will do all that is needed to ensure that there is still a meaningful relationship between father and daughter.
One of the big factors I have looked at is that the mother has come from a prejudiced upbringing. Through sheer willpower, she has forged a career with the ADF to the extent that the ADF is now part of who she is. The ADF was a part of who she was when she met the father. The ADF was a part of who she was when she conceived [X]. The ADF was a part of her when she gave birth to [X], and the ADF is still part of her now as she continues to care for [X].
If the mother were to leave the ADF, I am of the view that it would change who the mother is. It is not simply a case of the mother facing unemployment and having to look for another job. It is actually changing the very being of who the mother is. Such a profound change in who the mother is would also result in a profound change for [X]. This is in keeping with what [the family report writer] has already observed in the parts of the report that I have already quoted.
As it is at the moment, the mother is a fantastic role model for [X]. She is illustrating to [X] that an individual does not have to succumb to their environment. An individual can rise above their surroundings and empower themselves. This aspect of the mother is a cornerstone of the relationship of the mother as with [X].
While there is no doubt that whatever decision I make will change the relationship that [X] has with her mother or her father, I am of the view that the very core of the relationship between [X] and her father will not change, despite them being separated by distance. While the relationship will not be optimal, it will still be meaningful.
This is in contrast to the relationship between the mother and [X], which would change drastically if the mother were to leave the ADF and, in effect, change her very identity.
This has not been an easy decision and there are negatives with any decision that I make, but it is whether those positives that come from such a decision outweigh the negatives so that, on balance, the decision is one that is in the best interests of [X].
I have decided that I will allow [X] to be relocated to wherever the mother is posted. I am of the view that it is in [X]’s best interests to maintain the relationship she has with her mother, who is a member of the ADF.
The parties have come to agreements on the issue of property and on the issue of holidays until January 2019. The parties have asked that if I allowed relocation, that they have some time to discuss the issue of time spent with the father and to make further submissions if those are necessary.
Having come to the decision I have made, I do realise that this is a very big shift in the dynamic between the mother and the father. I would not be surprised if this decision is met with disbelief, anger and then grief by the father. Such reactions are only natural.
I do think there needs to be a period of time for the reality of what I have ordered to sink in. Once that has happened, the parents should try to make some arrangements between themselves for time, and if it is that they cannot agree on time to be spent with the father, then I will hear submissions and make further orders.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 4 October 2017

[2017] FCCA 2295

8 September 2017

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