Whitcomb and Whitcomb

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITCOMB & WHITCOMB

[2018] FCCA 3486

Catchwords:
FAMILY LAW – Parenting – future care arrangements – relocation – child’s best interests.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Crimes Act 1900, s.61

Archbold & Archbold (1984) FLC 91-532
Andrew & Delaine [2009] FamCAFC 182
Salah & Salah [2016] FamCAFC 100
Hadrami & Sahrawi [2018] FamCA 10
AMS v AIF (1999) 199 CLR 160
U & U [2002] FLC 93-112
MRR & GR [2010] HCA 4
Goode & Goode (2006) FLC 93-286
McCall & Clark [2009] FamCAFC 92
Mazorski & Albright [2007] FamCA 520
Burton & Churchin& Anor [2013] FamCAFC 180
Taylor & Barker [2007] FamCA 1246
Starr & Duggan [2009] FamCAFC 115
Morgan & Miles [2007] FamCA 1230
Sayer & Radcliffe & Anor [2012] FamCAFC 209
Palmer & Hammer(No. 2) [2011] FamCAFC 196
Randall & Adams [2011] FMCAfam 209
Hunt & Planey [2017] FamCA 549

Applicant:

MR WHITCOMB

Respondent:

MS WHITCOMB

File Number:

PAC 6361 of 2017

Judgment of:

Judge Harman

Hearing dates:

5-6 November 2018

Date of Last Submission:

6 November 2018

Delivered at:

Parramatta

Delivered on:

7 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Gardiner

Solicitors for the Applicant:

Coleman Greig Lawyers

Counsel for the Respondent:

Mr Greenaway

Solicitors for the Respondent:

Smythe Wozniak Solicitors

ORDERS

That the Father and the Mother shall have equal shared parental responsibility in relation to [X] born [date] 2016 (“the child”).
That the child shall live with the Mother.
That the child shall spend time with Father as follows: -
(a)During the period from the date of the making of these Orders until the child’s 6^th birthday: -
(i)for a period of 3 consecutive night up to 2 occasions per month, with such time to occur in Queensland; and
(ii)for additional block periods comprising of 7 consecutive nights up to 4 occasions per calendar year
upon the Father providing written Notice to the Mother not less than 28 days prior to his planned travel.
(b)Upon the child turning 6 years of age and thereafter: -
(i)from after school on Friday to Sunday afternoon on one occasion per month during the Queensland gazetted school terms as agreed between the Mother and the Father in writing, but failing agreement on the fourth weekend of each month; and
(ii)for one half of each of the Queensland gazetted school holiday periods as agreed between the Mother and the Father in writing, but failing agreement, for the first half of each period in even numbered years and the second half of each period in the odd numbered years.
That the time which the child is to spend with the Father pursuant to Order 3 above be suspended on the following occasions, and the child shall remain in the care of the Mother: -
(a)from 5.00pm on the Saturday prior to Mother’s Day until 5.00pm on Mother’s Day; and
(b)from 5.00pm on a day prior to the Mother’s birthday until 5.00pm on the Mother’s birthday.
That in the event of Orders being made which require the child to continue to reside in Sydney, then the child shall spend time with the Father as follows: -
(a)During the period from the date of the making of these Orders until the child’s 6^th birthday: -
(i)for a period of 3 consecutive nights up to 2 occasions per month, with such time to occur in New South Wales; and
(ii)for additional block periods comprising of 7 consecutive nights up to 4 occasions per calendar year
upon the Father providing written Notice to the Mother not less than 28 days prior to his planned time with the child.
(b)Upon the child turning 6 years of age and thereafter: -
(i)from after school on Friday to before school commences on the Monday on two occasions per month during the New South Wales gazetted school terms as agreed between the Mother and the Father in writing, but failing agreement on the second and fourth weekend of each month; and
(ii)for one half of each of the New South Wales gazetted school holiday periods as agreed between the Mother and the Father in writing, but failing agreement, for the first half of each period in even numbered years and the second half of each period in the odd numbered years.
That changeovers shall occur as follows: -
(a)for any period of time which the child is to spend with the Mother or Father pursuant to Orders 3 and 4 as applicable that do not require the child to travel interstate, shall occur at the residence of the parent with whom the child ordinarily lives;
(b)for any period of time which the child is to spend with the Mother or Father pursuant to Orders as applicable that requires the child to travel interstate, then the following shall apply: -
(i)the parent with whom the child is to spend time with shall be responsible for booking all flights and bear the cost of same at first instance and the other parent shall reimburse that parent for one half of the cost of the said flights within 14 days of the making of the booking;
(ii)the parent responsible for booking the flights is to forward to the other parent copies of the flight tickets within 24 hours of the booking;
(iii)the parent with whom the child is to spend time with shall accompany the child on all flights until the child attains the age of 6, after which time that parent may elect to arrange for the child to fly as an ‘unaccompanied minor’ with an airline offering such service provided that the parent complies with all requirements of the airline in respect of such service;
(iv)the parent with whom the child is ordinarily living with shall do all things to facilitate such time occurring, including ensuring the child is delivered to and collected from the airport which is nearest to his/her residence at the commencement and conclusions of the child spending time with the other parent.
That in the event that the parent with whom the child is spending time with considers the child to be medically unfit to spend time with the other parent, the parent with whom the child is spending time with must provide notice to the other parent in writing as soon as practicable and must provide to the other parent a medical certificate regarding the Child’s condition within two days of the medical condition having been diagnosed.
That each parent be permitted to communicate with the child while the child is in the care of the other parent as agreed between the parties in writing, but failing agreement as follows: -
(a)on each Tuesday and Thursday between 6.00pm and 6.30pm;
(b)communication where possible is to occur via Skype or FaceTime, but if not available then by telephone; and
(c)the parent with the care of the child at the time shall do all things to facilitate such communication occurring by ensuring that the child is contactable and available at the designated times and is free to speak to the other parent without interruption.
That the Parents shall communicate with each other by way of email except in the case of an emergency, and each communication shall only be in relation to the Child.
That each parent notify the other parent of any medical appointments or treatment received by the child and provide significant information to the other parent to enable that party to make their own enquiries with the treating health professional about such treatment.
That each parent is restrained from criticising or denigrating the other parent, or their family members, within the presence or hearing of the child, and each party shall further be restrained from allowing any third party to denigrate or criticise the other parent, or their family members, within the presence or hearing of the child.
That either parent be permitted to travel with the child outside of the Commonwealth of Australia, provided always: -
(a)Not less than 60 days prior to the intended date of departure, the travelling parent must provide the non-travelling parent with written details of the proposed travel, including: -
(i)dates and methods of travel (including flight and/or ship number, departure and arrival times);
(ii)a detailed and complete itinerary showing all destinations of travel;
(iii)addresses and telephone details (land line) of all accommodation where the child will be residing.
(b)Such travel occurs within a country that is a signatory of the Contravention of the Civil Aspects of International Child Abduction, unless otherwise agreed in writing.
That provided the parent who is seeking to travel with the child has complied with the requirements outlined in Order 12 above, the other parent will not withhold his/her consent and will if called upon by the travelling parent provide written consent and if that parent is also the holder of the child’s passport at that point in time then he/she shall forward the passport to the travelling parent not later than 21 days prior to the departure date.
That each parent shall, upon the written request of the other parent, do all things and sign all documents so as to enable a passport or a renewal of passport to be issued for the child with the requesting parent to be responsible for any costs associated with such application or renewal.
Dismiss all extant Applications and Responses.
Remove all issues from the list of cases awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
THE COURT NOTES that the above final Orders will come into effect on 30 December 2018.
THE COURT NOTES that until the mother’s relocation, to occur no earlier than 30 December 2018, the interim Orders made 8 February 2018 will continue to operate in their entirety.
In addition to the interim Orders made 8 February 2018 [X] shall spend time with his father, Mr Whitcomb, from 3pm Christmas Day until 3pm Boxing Day.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 6361 of 2017

MR WHITCOMB

Applicant

And

MS WHITCOMB

Respondent

REASONS FOR JUDGMENT

These proceedings relate to future care arrangements for a young child, [X], born 2016. As would be apparent from his date of birth, [X], who has been referred to throughout the proceedings as [X] (and thus I will adopt that term for him), is shortly to turn two years of age.
The parties to the proceedings are [X]’s parents, his father, Mr Whitcomb, who is the Applicant, and his mother, Ms Whitcomb, who is the Respondent.
As would also be apparent and perhaps tragically so, (although it is not a criticism of these parents), young [X]’s care arrangements have been the subject of litigation for now half of his life. In reality, this case has reached a final conclusion in less than 12 months. It is, however, regrettable that during such an important and, indeed, delightful period of this young child’s life that his parents have been enmeshed in litigation.
The proceedings are, in many ways and as must be made apparent from the outset, emblematic of issues that separated parents face. Perhaps they are also instructive as regards any dialogue with respect to timeliness of litigation. For reasons that will become apparent, these proceedings have been brought on as quickly as possible and as quickly as could be accommodated, thankfully more quickly than would have been the case if both parties had been entirely dependent upon the Court’s own resources for preparation of the matter. The parties have funded the preparation of their own report, which they have obtained far more quickly than the Court can provide.
The parents separated slightly less than 12 months ago. They have now reached a final determination of their litigation within that period. I am conscious that many eminent jurists such as, for example, the retired Justice Baker, have long opined that proceedings should not, except in the most unusual of circumstances, be heard within 12 months of the parties’ separation, as that is a period of time during which the parents are still very raw from the emotional realities of the breakdown of their relationship. Indeed, it is readily apparent from a consideration of the evidence in this case and having had the benefit and opportunity of observing both parents in the witness box that this period has been emotionally raw for each of these parents. The matter has required expeditious determination in light of the issues involved in the case.
The matter commenced with an Application seeking to cause [X]’s return from Queensland to New South Wales, again, not a matter that is referred to as a criticism of either party; either for initiating the proceedings or for having taken the step of relocating to the Southern Queensland area. It is simply a fact in this case. The father is entitled to prompt and expeditious address of both his interim and final Application, as is the mother.
Pursuant to Orders made by this Court, the mother was required to return [X] to the Sydney area. She did so. She has since at least March of this year, a period of some nine or 10 months, been living in Sydney with [X] against her will.
The matter is also emblematic of a very real and significant issue in relation to and connected with the above. These parents, each of them, as a consequence of their experience of each other during their relationship, experienced a significant degree of hurt. This led each to develop a significant degree of distrust of the other by the time of their separation. That distrust continues to the present. Hearteningly, as gleaned from the evidence of the parents, but also at least Mr Whitcomb’s adult daughter, Ms B, that distrust is beginning to abate, albeit slowly and cautiously.
Each of these parents has a somewhat poor and distrusting view of the other as a partner. I need not enter that controversy, although aspects of it will require some comment in these reasons. That distrust is emblematic in particular of the credo often advanced that a person as a partner and as a parent can be two very separate things. As a partner, each of these parents views the other in a poor light.
Each of these parents, as parents, do not have quite such a dim view, each of the other. Neither, for example, suggests that the other is in any way a risk to young [X]. Neither suggests that the other parent is other than a competent parent. That is thankfully so, as the evidence clearly establishes that both of these parents are decent and competent parents. Their experience of each other as partners, sadly, is not as positive. But they are not matters which need any significant consideration by this Court and certainly no finding need be made. It is apparent from the Notices of Risk that each of the parties have filed that there are no real or significant concerns raised by either, although that is not to suggest that there are no concerns raised. Those concerns will be touched upon and addressed individually.

Proposals of the parties

Each of the parties places before the Court, at least by the commencement of trial, an almost identical position. The father, for his part, proposes that, subject to [X] continuing to reside within the Sydney metropolitan area and subject to Ms Whitcomb agreeing to remain within that area (and it should be observed that Ms Whitcomb is clear that she has no intention of living anywhere without [X] in her care) that [X] would live with his mother and spend time with his father on a graduating and building arrangement from now until the commencement of the school year in 2023, quite some years hence. It is proposed on the father’s part that time would, for the foreseeable future and until February 2022, occur each Wednesday for the day as well as each alternate weekend Friday to Sunday.
The mother’s proposal, as indicated, is almost identical. The mother proposes that if the parties were living in the same area that such an arrangement would be entirely appropriate and practical. But the mother’s case is fundamentally prefaced upon the parties living in different states, she in Queensland, the father in New South Wales. On that basis, the mother proposes that time would occur, until [X]’s 6^th birthday, for two occasions per month (referable to alternate weekend time but perhaps slightly less) and for three consecutive nights each period, together with additional block periods of seven days at a time to occur four times per year. The three consecutive night periods are expressed as occurring within Queensland, the week-long blocks to occur wherever the father may desire.
The father’s alternate proposal, if it might be put in those terms, although in reality it is and would remain his primary position, is that [X] would, if the mother lived in Queensland, live with him and spend time with the mother on the same basis as the mother has proposed.
The proposals that are put are commended by the Family Report Writer. The Family Report Writer’s evidence, which I will deal with in more detail shortly, was somewhat supportive of those proposals, indicating that if the parties lived in the same area, at least weekly time would be ideal. Each proposes such an arrangement. If the parties were to live in separate states, the Family Report Writer was clear that the proposals referred to above were:
…one of the better counter proposals. The economics would remain relevant. If one parent was meeting the cost, it would be unachievable. If it was being shared, then overall it is a reasonable proposal.
Whilst the above is prefaced as quotes, it records my note of the evidence and is not guaranteed, were a transcript to be obtained, to be word for word the evidence of the Report Writer. I would hope it catches its general intent.
The Family Report Writer exuded positivity with respect to the parents and I am satisfied appropriately so. These are good parents, the type of parents that, from the Court’s perspective, it is always tragic to see before the Court. That is not to wish upon the Court a diet of dysfunction. Heaven knows that tends to occur without invitation. But for these parents, there is little that can go wrong for [X] if they remain focused upon him, as they have been since his birth.
As indicated, neither parent alleges that there is risk to [X] from the other parent, notwithstanding the matters that each have raised in their material, which I will address shortly. Each parent proposes, notwithstanding the complaints that they raise, that there should be an Order made for equal shared parental responsibility. One might infer therefrom that neither proposes that the presumption of equal shared parental responsibility under section 61DA of the Family Law Act 1975 would not apply or, if it applied, that it would be rebutted. Of course, the Order made allocating parental responsibility is not dependent upon the operation of that presumption, but neither party agitates for contrary relief.

The material considered

In dealing with the proceedings, I have read and considered each of the documents that the parties have identified and the Case Outlines filed by their respective Counsel or as tendered. In the case of the father, that has comprised his Amended Initiating Application, his Affidavit of evidence-in-chief filed on 29 June 2018, an Affidavit of young Ms B, one of the father’s adult daughters, also filed 29 June 2018 together with a Notice of Risk filed with the Initiating Application, 20 December 2017.
In the mother’s case, her evidence comprises her Amended Response filed 6 July 2018, her Notice of Risk filed 29 January 2018, the mother's trial Affidavit filed 6 July 2018, an Affidavit in reply filed 29 October 2018, an Affidavit of the maternal grandmother, Ms A, filed 15 October 2018 and an Affidavit of Ms J sworn on 13 October 2018 and filed in Court.

In addition, there are a number of exhibits comprising:
a)Exhibit A, the Family Report;
b)Exhibit A1, a day care enrolment form;
c)Exhibit A2, records as tagged from the Centre Against Domestic Abuse;
d)Exhibit A3, records as tagged (F1 to F4) produced by Dr S;
e)Exhibit A4, six pages of the records tagged M1 comprising records of psychologist or counsellor Mr T;
f)Exhibit A5, a Minute of Orders. That Minute of Order reflects the proposals that are set out above on the father’s part;
g)Exhibit R1, a schedule or printout of different positions vacant for persons with the qualifications of the father;
h)Exhibit R2, the father’s tax return for 2013-14 financial year;
i)Exhibit R3, further records as tagged from the Centre Against Domestic Abuse;
j)Exhibit R4, further records as tagged from Mr T;
k)Exhibit R5, tagged records from New South Wales Police;
l)Exhibit R6, tagged records from Suburb A Clinic.

History of proceedings

It is germane to briefly consider the history of these proceedings.
The matter was commenced by an Initiating Application filed on 20 December 2017. That would appear to have been served promptly after filing. So much can be gleaned from the reality that a Notice of Address for Service was filed on behalf of the mother in early January during the Court’s then closedown period. The Application, as initially filed, did not seek relief that was substantially different from that which is now pressed, save and except that in relation to final relief, the father did not set out a detailed proposal, hence the filing of an Amended Application, 27 April 2018, which is now augmented by the minute tendered during the hearing. I have referred to that minute as augmenting the father’s position as it, in effect, created a plea for alternate relief. The Amended Application sought, irrespective of where the mother may be resident, that [X] live with the father. The father’s position from the commencement of the trial was that if the mother remained in Sydney, [X] should live with her.
The mother filed a Response on 29 January 2018. That Response, in similar vein, sought the allocation of equal shared parental responsibility and sought leave to particularise final relief at a later time. I make clear that the filing of Applications which do not particularise final relief are not to be encouraged. Such Applications do not afford procedural fairness to the parties. Such Applications do not permit each party to know the case that they are answering on a final basis. I accept that this matter came on with some degree of urgency and it might, in those circumstances, be excused, particularly when neither party was aware of how the interim Application might be determined and the relief that they might seek on a final basis would thus be affected.
However, parties should, as the High Court of Australia has discussed in U & U [2002] FLC 93-112, file an Application that clearly sets out the Orders that they propose to press on a final basis. Interim relief cannot be sought without a plea for final relief, and an Application that seeks simply leave to amend does not propose final relief. That issue aside, and it is of no consequence to the determination of this child’s best interests, the parties’ positions and material are thus identified.

Chronology of events

I propose to set out a chronology taken from that contained within the Case Outline documents filed by Counsel for each of the parties. I make clear from the outset that a number of the matters set out within the chronologies, particularly the mother’s, although it is not a criticism, are redacted merely as they are not matters as to which findings of fact need be made. They are otherwise not vastly relevant to the determination that must be made.
The chronology of events as established by the evidence is thus as follows.
[date] 1962, Mr Whitcomb was born.
[date] 1975, Ms Whitcomb was born. At the hearing, Mr Whitcomb was aged 56 years, the mother 43 years.
2005, the parties first meet.
2008, the mother moves to Darwin to live with her parents. The mother obtained work in Darwin.
[date] 2009, the parties commence a relationship.
2009, the parties commence to cohabit with each other, the mother moving from Darwin, where she was then living with her parents, to [country omitted], where the father was living and practising a relationship with his then infant children, now both adults.
2009, the parties, living together in [country omitted], practise a part-time care arrangement with respect to the father’s now adult children, Ms B and Ms R, then 16 and 14 years of age respectively.
[date] 2010, the mother suffers an ectopic pregnancy. She has emergency surgery, and her parents fly to [country omitted] to be with her at that time. That fact of itself is not directly relevant to the determination of this young lad’s future and prospective care arrangements. However, it is included, as it is a matter of some significance affecting the journey that this relationship has experienced and particularly the mother and the support her parents have provided her.
[date] 2011, the parties relocate from [date] to Australia. The father’s children remain living in [country omitted]. The parties commence to live together in Town L.
[date] 2012, the parties move from Town L to Suburb B in Sydney’s suburbs, obtaining rental accommodation. The father continues to live in that same rental accommodation.
Late 2012, the father’s youngest daughter, Ms R, moves from [country omitted] to Sydney and commences to live with the parties at Suburb B.
Late 2013, the father’s eldest daughter, Ms B, also moves to Sydney and begins to live with the parties at Suburb B.
[date] 2014, the mother experiences a miscarriage. Again, that is not directly relevant to the determination of prospective arrangements for young [X]. However, it is a very important part of the journey of these parties, and it should be appropriately acknowledged.
2014, Ms B is diagnosed with certain mental health conditions at the time of or following an attempt at self-harm. Again, that is not directly relevant but impacts upon certain aspects of the evidence. It is particularly germane to observe that Ms B, when required for cross-examination, was clearly and openly distressed and emotionally upset by the experience.
2014, Ms R ceases to live with the parties. It is unclear from the evidence, but it would appear that she then returned to [country omitted]. It may not be so, nor does anything turn upon that.
2015, Ms B ceases to live with the parties.
[date] 2016, the mother falls pregnant with [X].
[date] 2016, [X] is born.
[date] 2017, the mother alleges that difficulties in the relationship begin to become apparent. At that time, she suggests that she was given an article by the father regarding the feelings of neglect that men might experience following the birth of children. Indeed, that is something which should be acknowledged and, again, whilst not directly relevant to a prospective determination, is part of the journey of these parties in their relationship and particularly the beginning of the deterioration of the relationship. It is not to suggest fault on the part of either party, merely to acknowledge that the birth of a child is a difficult experience in any relationship, particularly for these parties and for the mother, having previously experienced difficulties with earlier pregnancies.
From the time of [X]’s birth on [date] 2016 until the separation of the parties, indeed, with very little change, continuing to the present, the mother has been a full-time stay at home mum and the father has been a breadwinner within the household. The father continued to work on a full-time basis, albeit self-employed following [X]’s birth and to date.
13 June 2017, the parties have a discussion during which it would seem common ground that the mother indicated to the father her desire to end the relationship. The mother’s displeasure with the relationship, at that point, was for a variety of reasons which need not be canvased. The mother suggests that she asked the father to move into a spare room within the rented Suburb B home. The father disputes that evidence, but, in any event, it is agreed that the parties continued to sleep in the same room, although other aspects of their intimacy ceased.
June to November 2017, the parties continue to live separately and apart under the one roof. The mother's evidence, which I accept, suggests that she indicated to the father on several occasions during that period that she wishes to return to Queensland to live there with [X]. The father does not deny that it is so, although the father also indicates in his evidence that the mother had indicated to him that she would remain living at Suburb B, with the parties living separately under the one roof, so that she could care for [X], both parents can have a relationship with him and the father could continue to earn income for the household. The mother suggests, further, that when she raised the topic of her relocating with [X] to Queensland that the father had said to her, on at least some of those occasions, that if they were not going to Queensland together as a couple that he would return to [country omitted].
The mother also alleges that during the period of separation under the one roof that the father was somewhat strident, indeed, she suggests controlling and aggressive, in his suggestion that the relationship be reconciled. I need not canvas the latter aspect of the allegation, although quite clearly on the evidence, the father was significantly affected by separation. That is not and could not be a criticism of him. It demonstrates that he was very committed to the relationship and desired its continuation. Indeed, he indicates in his Affidavit material quite clearly and candidly so, that he was not coping as well during that period as he might have.
At paragraph 57, he is also clear that during that period of time there were no difficulties whatsoever in his continuing a relationship with [X], describing “there was not ever a time during the period that we remained living together when the respondent sought to prevent me from seeing [X]”. That position or at least the allegation has changed for the period since separation.
The mother also suggests that during this period, in addition to entreaties by the father to reconcile the relationship, that the father had said to her words to the effect that he would not let her leave the relationship. During this period, the mother also suggests that she received various messages both during verbal discussion between the parents or by text that if the relationship was to end that the father would return to live in [country omitted].
Also during 2017 and either shortly prior to or during the period of separation under the one roof, [X] commenced to attend a childcare centre three days per week. That centre was operated by Ms M. A portion of the cross-examination related to the complaint, indeed, the documents are tendered demonstrating, that the mother had “forged” the father’s signature to the childcare enrolment. I am not satisfied that anything of any significance, not even as to credit, turns upon that fact.
Firstly, the mother readily concedes that she signed the father’s name or gave a signature which could properly be described as forged, as clearly it was not the father’s. However, the mother suggests that she did so with his permission. That is not inconsistent with the father’s evidence at paragraph 30 that in September 2017 [X] was enrolled in day care and attended three days per week and concluding that the decision to enrol [X] in day care “was largely the respondent’s decision”. It does not suggest that the father was unaware or entirely uninvolved. Again, nothing of significance turns upon the fact at all.
I am not critical of the mother for enrolling the child in day care. The criticism might be inferred that as she was not in paid employment, she should have stayed home caring for the child. It is a matter for parents how they make such arrangements. Indeed, it may well be that it was intended purely to provide some respite from the onerous duties of caring for a child, not to suggest that either of these parents describes it to be an onerous duty or anything but a pleasure, but it is most assuredly tiring and constricting of adult business. Secondly, it is a means by which a child can receive educational and social benefit. The reality, in any event, is that both parties agree that it was so.
[date] 2017, the mother’s parents visit Sydney having, in the intervening period during the relationship of the parties, relocated themselves from Darwin to Town M in Queensland, some 1300 kilometres or so of Brisbane. The parents visited and stayed at the same home as these parents, then separated under the one roof and their relationship deteriorating and permeated with problems.
[date] 2017, the mother suggests that she told the father, in the presence of her parents, that she did not wish to continue the relationship. The mother suggests that in response, and with [X] present, that the father yelled and screamed at the mother and at her parents and demanded that her parents leave the home. There is some dispute as to the exact mechanics of that arrangement, but certainly the father agrees that he was highly frustrated and became angry. I do not accept that the father visited violence upon anyone on that occasion, as is suggested by portions of the evidence. I do accept, however, that the father may well have raised his voice and yelled, and he concedes that he swore whilst leaving the home.
To put that within its context, the father clearly desired for this relationship to continue. He did not initiate the separation, did not desire the separation. And for both parents it must have been extraordinarily stressful to have one’s in-laws staying at the home and such discussions then occurring. That does not excuse behaviour which clearly on the evidence of both parties was upsetting for [X], who was crying, the mother suggests uncontrollably, but it does make it explicable.
It is pointless for this Court to judge parents. The Court does not do so. It judges cases, facts and circumstances in its role as a tribunal of fact and imposes an outcome, as the judicial branch of government, quelling the controversy. That the father became upset on that occasion I can well understand, although the mother suggests a broader relevance, pointing to a lack of emotional control. Whether that is established on the evidence or not I need not ultimately find but, if pressed, I would have difficulty in so finding based on the evidence in its totality.
As a consequence of those events, however, the mother left the home with her parents and young [X], staying the night at the home of a friend and over the next few days staying at different friends’ homes, having nowhere else to go and no ready means of financial support. At that point in time, the mother did not have any significant savings or income and she was not in paid employment. The mother's parents were not in paid employment at that time, her mother having recently been diagnosed with some significant health issues, her father also having some health issues. Her parents had visited intending to have free accommodation, as it were, staying with her daughter and her partner. Thus, it is explicable that they spent some days couch surfing.
[date] 2017, the mother and father as well as the maternal grandmother meet at a McDonald’s restaurant. The father spent time with [X] on that occasion, and the time would appear to have terminated when the parties began to quarrel in relation to their relationship. I do not describe it as a quarrel to minimise the mother’s evidence that she felt fearful and scared on that occasion, merely to seek to mutualise the event. It is not to suggest that the mother is untruthful in suggesting she felt, at the very least, uncomfortable or, as she leads in her evidence, scared. That was, however, the last occasion for some little time, when [X] spent time with his father, a circumstance of some significance to which I will return shortly.
[date] 2017, the day after the above visit, the mother with her parents and [X] travel to the Town N area of Queensland, staying initially at the home of a friend. Immediately thereafter and on [date] 2017, the father established a private corporation, [Business], which has since conducted and taken over the conduct of a business operated through a company which had previously been transferred into the wife’s sole name and which, from the evidence, would appear to carry a significant degree of debt.
[date] 2017, the mother advises the father, for the first time, that she has, in fact, relocated to the Brisbane area with [X], living in the Town N area in Queensland. Thereafter, there were some communications between the parents or through their lawyers in relation to [X] spending time with the father. That time did not eventuate until after Orders were made by this Court in February 2018. During that period, however, to the credit of the parties, electronic communications, although not a substitute for face-to-face time, did occur.
Also, during that period from the mother’s relocation to Queensland until the proceedings came before the Court on 10 February 2018 and interim parenting Orders were made, the father undertook two trips to [country omitted], one in [date] 2017, one in [date] 2018.
On [date] 2017, the father sent a text message to the mother, telling her that he is sorry that he “hurt her”. During cross-examination, it was suggested that the message was an admission by the father of physical family violence. The message itself is no such thing, and the father denies that it was its intent. The hurt which was visited upon the mother occurred in numerous forms, including emotionally, and for reasons that the parties’ evidence explained and which will be touched upon, albeit very briefly.
[date] 2017, the father sent the mother text messages indicating an intent to return to live in [country omitted] and asking that [X] be permitted to travel with him to [country omitted] at the end of the month to spend a couple of weeks there. During his cross-examination, the father indicated that he had never formed, nor acted upon any serious intent, nor considered it in any serious fashion as regards relocation to [country omitted], but he had simply expressed the thought. Nothing turns upon which version it is, although the mother’s evidence is consistent with prior suggested comments regarding return to [country omitted].
[date] 2017, the mother by text message contacted the father, offering for the father to visit [X] in Brisbane on the weekend of [date]. That time did not ultimately occur.
On 20 December 2017, the father’s Application was filed with this Court. In early 2018, the mother obtained separate rental accommodation for herself and [X] as well as her parents, although the parents continued to have a primary place of residence in Town M, some distance away. The mother arranged day care for young [X] and began to make enquiries with respect to employment, ultimately obtaining work with a business [employer omitted]. The mother’s witness, the owner and operator of that business, indicates that work is available for her if she returns.
[date] 2018, the mother makes Application in the [Magistrates Court] for a protection Order. That Application was ultimately discontinued and withdrawn. I do not infer anything from the discontinuance or withdrawal. The existence of an Apprehended Domestic Violence Order proves nothing more complex than the existence of an Apprehended Domestic Violence Order in the same way that the absence of an Apprehended Domestic Violence Order proves nothing more than the absence of an Order.

There are many complex reasons why a party might withdraw an Application. In this case, many reasons are readily apparent. The Application had become a cause of real concern between the parties and the beginning of many arguments between them as both have competed as [hobby omitted]. The making of an interim Apprehended Violence Order clearly had the effect of requiring the surrender by the father of firearms. That may have impacted the mother's decision. Many other factors may have done so. Withdrawal of the Application is not an admission that the complaint was false, fraudulent or unnecessary, merely that at the time of discontinuance it was not pressed.
8 February 2018, it is suggested, although a transcript is not available, that the father’s then legal representative indicated to the Court, during the interim hearing of the parenting Application, that the father conceded hitting the mother physically on at least one occasion. Whilst that is contained within the chronology and paragraph 103 of the mother's Affidavit, as indicated, there is no typescript to confirm the allegation, and the father’s evidence is contrary to that proposition. It was not the father’s admission, in any event.
Also, on that date, interim Orders were made by the Court. The interim Application was heard on the first return date of the proceedings. Those Orders required that the mother return [X]’s place of residence to within 20 kilometres of the home at Suburb B and that this occur by 8 March. The father was required to provide assistance to the mother of up to $385 per week to go towards her rent. It is common ground that the father has, in fact, made these payments and that the payment continues to be paid and will be until the termination of these proceedings today.
Orders were made for [X] to spend time with his father for quite limited periods, initially four hours, and to occur in the presence of Ms L for the first two periods. Notwithstanding that the Order is expressed as time occurring in the presence of a person rather than being supervised, subsequent periods are referred to as being unsupervised. It is unclear from the evidence why supervision was or would ever have been necessary. There is no suggestion of risk whatsoever, nor would young [X], even with the break of two and a half months in practice of relationship that had occurred, with FaceTime occurring regularly in that period, have forgotten who his father was. In any event, it was the Order made by the Court on the mother's Application. Time then increased and built up to alternate weekend time, albeit non-overnight, as well as time during the week for two periods of three hours each.
[date] 2018, a temporary protection Order was made by the [Magistrates Court] in favour of the mother.
[date] 2018, the father made a post to a Facebook page, whether his own or otherwise, which the mother accessed through some means. That is not to suggest that the means that the mother may have adopted were inappropriate. It is simply a reflection of the father’s evidence that these parties had defriended each other and were blocked and could not view each other's pages. However, the mother having viewed the father’s post, which made reference to a toxic mother, believed it was directed to her and found it offensive.
Between 10 February 2018 and 11 March 2018, the father spent time with young [X] in accordance with the Orders.
8 March 2018, the mother returned with [X] to live in rental accommodation in Sydney. The mother's parents then left the rental accommodation in the Town N area and returned to their home in Town M.
13 March 2018 to present, [X] has spent weekday time, two periods of three hours each week, as well as weekend daytime periods with his father.
[date] 2018, [X] was diagnosed as lactose intolerant. Again, that is not directly relevant to any future determination of [X]’s interests. It is merely to acknowledge that this is a circumstance of this child.
March 2018 to present, [X] has attended day care three days per week.
[date] 2018, the father made another post to Facebook, although its text need not be recited, which the mother viewed and considered directed towards her and offensive.
[date] 2018, the father delivered to the mother her wedding dress. The mother alleges the dress was stained, inferentially deliberately. That again caused some distress for the mother and distrust between the parties. On the same date, the mother viewed a further Facebook post of the father which she again considered was directed to her and she found offensive.
[date] 2018, again, the mother viewed a Facebook post of the father which she considered referable to her or members of her family and which she considered threatening and offensive. The post read words to the effect:
Karma is the best form of punishment and it’s coming to them and their family. Going to enjoy watching it. It’s going to be biblical.
The mother understood this to be a reference to one of the father’s favourite films titled [name omitted].
5 July 2018, the mother withdrew and discontinued her Application for protection Order.
The conduct of the proceedings has been efficient by these parties, thankfully so. Following the interim hearing, the matter returned before the Court on 27 March 2018, at which time a number of Orders were made by consent for the commissioning of a Family Report privately funded by the parties.
Arrangements were also made to transfer the matter between Judges so that earlier hearing dates might be allocated to the case. Those dates were allocated from a call-over on 9 July 2018 with, only an objection to subpoena having been dealt in the intervening period.
The matter proceeded on its allocated hearing dates and was contained to the time fixed notwithstanding that periods of those hearing days were lost to other business. The conclusion of the matter has been achieved through the erudite and focused conduct of the proceedings by the parties, their instructing Solicitors and Counsel.

The parties’ relationship

As would be apparent from the above chronology, the parties met in 2005, although, their romantic or intimate relationship did not commence until some little time later. Whilst it is not expressly addressed in the evidence with any detail or provision, nor need it be, the parties would appear to have met through both online activity and through their mutual interest in [hobby omitted].
At the time the parties commenced their co-habitation, the mother relocated herself, ironically so perhaps in light of the subject matter of these proceedings, from Darwin, leaving the residence she then shared with her parents, to [country omitted]. The parties have had two subsequent changes in accommodations, apparent from the above chronology, from [country omitted] to Town L and then to Sydney.
As already observed, the father continues to live in the same accommodation that the parties shared since late 2012, although, maintenance of stable accommodation, and the child remaining within the same accommodation in which the child has lived previously, or in the case of young [X], all of his life, is not the relevant test (See, for example, Archbold & Archbold (1984) FLC 91-532). Shortly after the parties had returned to living in Australia, the wife’s parents moved from their then accommodation in Darwin to Queensland.
It would seem apparent from the evidence of Ms Whitcomb that the move to Queensland was facilitated by an adult child having purchased a property there which they were able to move to. Mr Whitcomb and Ms Whitcomb Snr are not people of great financial means, neither are these parties. As a consequence of the maternal grandparents moving to Queensland, however, it would seem common ground between these parties that during their relationship, from 2012 until separation, that they travelled together to Queensland approximately four times per year. There is controversy as to how many friends or relatives of the mother, father or both they met or interacted with during those periods, however, the travel itself is not in dispute.
Shortly after physical separation of these parties, the mother took herself and [X] to Queensland before returning as a consequence of the Court’s Orders. Each of the parties raise, with respect to their relationship, issues with respect to family violence. The father raises complaints with respect to the mother of excessive and unnecessary gambling. The mother raises complaints of the father which might be broadly described under a heading of philandering. They are not directly relevant to [X]’s future arrangements, nor could they be in light of the proposals of the parties, but they have engendered significant distrust between these parents.

Family violence

The wife raises significant allegations of family violence which are largely non-physical in their nature. The father raises allegations of family violence with respect to the mother which include, but are not limited to, allegations of physical violence. I make clear from the outset that the definition of family violence does not require physicality at all. The definition of family violence, as contained within section 4AB of the Act, is directed towards violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Section 4AB(2) gives examples of behaviours that may constitute family violence. Those examples certainly include physical violence but they are not limited to physical violence. The section includes many other behaviours such as derogatory taunts, damaging property, threatening injury to animals and the like. All of those are examples within the evidence.
The definition of family violence is analogous to the offence of common assault, as it is often referred to in section 61 of the Crimes Act 1900 (NSW), relating as it does to behaviour that causes fear and which need not involve physical striking or touching.
The criticism is made of the mother that whilst corroborative evidence is produced, in the nature of counselling records and the like, that there are inconsistencies between the mother’s evidence and that which she has reported to other services. I make clear that this is not fatal to an acceptance of the mother’s evidence. One would expect inconsistency, indeed evidentially, an absence of inconsistency might be more concerning. An absolute rigidity in repeating the same script over time might suggest either a truly extraordinary memory or a well-rehearsed response.
The discrepancies that arise with respect to the mother’s Affidavit evidence and earlier reports, do not cause me concern as to the mother’s truthfulness. There are many reasons why those inconsistencies might arise. Some of the documents are not the mother’s. They are second-hand reports of what the mother has said to another person and it is the maker of the record who has interpreted what they are told and has chosen what to record and how to record it. The mother was clear that in relation to records produced from the Centre Against Domestic Abuse, that she had been less than candid with them. It was put to her that she had been untruthful. She conceded she had lied. I prefer the description of being less candid.
Again, there are many reasons why a person may choose to not give an accurate history to a person who is asking them about such matters. Ultimately, however, in relation to the allegations that each raise, and the father’s allegations suggest not only physical violence directed by the mother to him but also to young Ms B, albeit then a young adult, findings preferring one version of the other are not necessary to determine this controversy. That is not intended to avoid the issue or to avoid pursuing unpleasant truths (as discussed for example in Salah & Salah [2016] FamCAFC 100 and in Hadrami & Sahrawi [2018] FamCA 10). It is simply that for this Court to determine [X]’s future arrangements, and to focus upon his best interests, the parties would appear, at least inferentially, to concede that the allegations they each raise are not directly relevant to the care that each will provide to young [X].
It is not necessary, in those circumstances, for me to determine whether the mother is more correct in her assertion of particular events than the father. Again, I hasten to make clear that this is not to disregard the mother’s evidence, nor to disbelieve it. It is not to disregard the father’s evidence or young Ms B’s evidence, nor disbelieve it. It is merely that whilst the evidence is raised, it does not assist in the determination and neither suggests that it represents a foundation for a finding of risk. If either suggested such a foundation, findings would be necessary as the above Full Court authorities makes clear. In this case, however, the evidence simply gives a context to the relationship of these parties and the breakdown of that relationship.
In relation to young Ms B, clearly distressed and emotionally upset during the giving of her evidence, it is clear that there were many factors in play leading to the altercations, if they might be so described, between the mother and her. Ms B ultimately conceded that whilst she continues to assert the truth of her evidence, she did not for one moment suggest that there was any deficiency in Ms Whitcomb’s parenting of young [X], nor any risk to [X] whilst in her care. In those circumstances, the matters simply do not assist me.

The mother’s relocation

Great criticism is raised of Ms Whitcomb for having taken herself and [X] to Queensland. I well understand that Mr Whitcomb would feel significantly aggrieved by that step. Mr Whitcomb was confronted with the terror of interference in his relationship, although, not active or direct interference perpetrated by Ms Whitcomb.
I accept Ms Whitcomb’s evidence that she had, from the time that these parents separated under the one roof, raised with Mr Whitcomb, during discussions, if not arguments between these parties, the prospect of moving to Queensland. That is so irrespective of whether she had specifically told him of her intent to move to Queensland in November 2017.
It certainly might have been more sensitive to have notified Mr Whitcomb before departing rather than after. However, it must be remembered that these parents were, at that point, separated for several days only. They should not be judged on their lack of sensitivity, each to the other, at that point in time. They were both traumatised, grieving and perhaps not acting at their best. As a District Court Judge once quipped, in a criminal jurisdiction one sees bad people behaving at their best whilst in this jurisdiction one often sees, and in this case very much so, good people behaving at their worst. Although their worst is, thankfully, not particularly repugnant. Insensitive is as high as the criticism would go. There was certainly notice, swiftly and promptly, upon arriving in Queensland.
I accept the evidence of Ms Whitcomb that she had very little choice, or very little alternative, as to what she might do post separation. After several days of couch surfing with [X] and her parents, with debts from a business no longer trading, with no material means of support, indeed with very little by way of possessions, furniture or otherwise, she was desperate for accommodation. She moved to the area where she had lived for a significant period and where she had many friends and acquaintances. She had previously lived with her parents in Darwin immediately prior to this relationship and, thus, this was an arrangement familiar to her. She needed support, emotionally, financially and practically, at that point in time. It came from her parents and her social network.
She was without funds. She was without any support, assistance or nurture. She was recently separated, a matter of days physically, and only a matter of a few months under the one roof, a time which must have been tense and unpleasant for both parents and all others within the household, including [X]. To the extent that it is suggested that the mother did not have good reason for going to Queensland at that time, I reject the proposition on two bases.
Firstly, as would be apparent from the above, the mother, at a time of flux and substantial need, saw an opportunity to find the very support and assistance she required. Secondly, as the Full Court of the Family Court of Australia has been clear and as I will deal with at some length, there is no requirement upon a parent to demonstrate a compelling reason for why they seek to live in any particular place. The mother has explained why she moved and as Kirby J explained in AMS v AIF (1999) 199 CLR 160, a parent’s reasons for relocation, whilst not required to be demonstrated as compelling, might be relevant to other aspects of the case. The mother’s reasons are relevant in this case to reject the criticism which otherwise might fall.

Time after relocation

It is highly regrettable that from 21 November 2017 until early February 2018, a period of two and a half months, a significant period in the life of this child then one year of age, or thereabouts, that there was no face-to-face time. However, I also accept that both parents, in hindsight, see that as regrettable. Indeed, both, I am satisfied, would have seen it as regrettable at the time. I accept that neither believed that this arrangement was desirable. The entreaties each offered regarding time must obviate against any proposition that either thought it was the best thing for [X] that there be no time.
I accept Ms Whitcomb’s evidence that she had made an offer of time to the father and that it was refused. The father indicates that he could not afford it. It was at relatively short notice and he had already planned and committed his funds to a trip which had occurred shortly prior thereto. However, I do not accept that it would have been impossible for that to time to have occurred. The father travelled to [country omitted] again some few weeks later in January 2018 and, upon the mother’s return to Sydney, notwithstanding the father’s somewhat meagre income by reference to the one tax return that is tendered, he was able to find $385 per week to assist the mother with accommodation without accruing debt.
Even if the father was required to find accommodation for himself for the night, whilst spending the weekend in the Brisbane area, and to meet airfares, it would not have been as expensive as suggested. Whilst I accept that it would have been a cost, at least hundreds of dollars, that money could have been found if there was a strong desire for it to be so.
I accept the father’s evidence that both he and his lawyers had, to both the mother and her lawyers, made clear that he wished to travel to Queensland to spend time with [X] on the weekend of 28 January 2018 or thereabouts. Neither the mother, nor her lawyers, responded.
I cannot blame the mother for the absence of response nor her lawyers. I cannot presume that they did not respond on instruction. It may simply be that they were busy. The mother failing to respond may well be referrable to the concerns that she suggests that she held or perhaps even as simple as her being offended, and thus positional or concrete in her thinking, having been served with the father’s Application for parenting Orders, particularly as the Application sought that [X] live with the father.
Both parents were recently separated, in emotional turmoil and, to that extent, I am satisfied that the father’s text message, for example, referring to moving to [country omitted] is probably best seen as a symptom of his emotional turmoil and general distress and, in those circumstances, neither was behaving as appropriately as they might have. Each was focused upon the importance of [X]’s relationship with the other but each somewhat positional and oppositional to the other’s position.

The mother’s gambling

I accept that the mother, in the period leading up to the separation of these parents, had a difficulty with gambling. Indeed, she concedes it. She offers an explanation that it was her emotional or psychological response to the stresses she was then feeling. I accept that the gambling was at a higher or more serious level than the mother admits, however, I also accept it is not a current issue. More importantly, I cannot see how it is relevant save and except in two ways.
Firstly, the mother raises allegations with respect to family violence including financial control. Clearly, the mother was able to access funds from the business which the parties jointly operated, albeit, the mother was, at that point in time, the sole shareholder and director for reasons which would appear connected with protection of Mr Whitcomb from litigation. Thus, Ms Whitcomb could not have been controlled to the extent that she suggested, at least financially, as she was able to access reasonable sums of money without impediment. Secondly, the mother’s absence whilst gambling suggests that the mother was content with the reality that [X] would be properly and appropriately cared for by the father and/or Ms B, then living in the home or at least visiting regularly to provide assistance. Beyond that, however, I simply do not see that the issue is or could be relevant, nor would it appear to be pressed as relevant, as regards any prospective determination.

The father’s evidence regarding his ability to move to Queensland and the mother’s evidence regarding her ability to remain in New South Wales

I am conscious of that which fell from Gaudron and Kirby JJ in AMS v AIF, regarding the reality that neither party need demonstrate significant barrier, nor compelling reason, as to either why they could not relocate or why they should be permitted to. Indeed, as will become apparent in discussion of relevant case law, Kirby J, in particular, was clear in AMS v AIF that the language of permission to relocate is entirely misplaced and inappropriate. However, both made clear that the Court should consider all of the evidence in relation to the case including propositions as to whether it is possible or how onerous it might be for a parent to remain where they are, if restrained, or for the other parent, if a restraint is not imposed, to relocate themselves.
I accept there is no impediment for either but that, of course, is not the test. It is relevant, but the child’s best interests are the paramount consideration. The legitimate interests of parents, as Kirby J described them, are relevant, certainly not irrelevant, but subservient to the paramountcy principle.
I accept the mother’s evidence that she is a good parent. Indeed, it is conceded both by the father and Ms B. I accept that the father is a good parent. It is conceded by the mother, although, less so by Ms Whitcomb senior, although, to the extent that she expresses that view I am satisfied she is simply wrong and her view is perhaps coloured by her alliance with her daughter and perhaps her feelings of distress as to how she perceives her daughter has been treated. That perception may be entirely accurate.
Each of these parents could parent young [X] wherever they were. I accept that there is no barrier to the mother remaining in Sydney to the extent as is put in submissions on behalf of Mr Whitcomb that the mother would not be rendered incapable of meeting her needs or [X]’s if required to stay. However, I accept that she would be better able to parent if she were able to live where she desired. She would have family support, employment, better financial prospects and ready assistance, in the event that she required it, in meeting [X]’s needs.
Similarly, the father would be better able to parent in Sydney where his connection is, his two adult children, his employment, et cetera. However, there is no barrier to either the mother remaining in Sydney should that be imposed upon her. Indeed, she is clear, although as Gaudron J described, it is a false consent and should not be treated as concession, that if required to stay, at the price of [X] leaving her care, she most assuredly would.
Similarly, the father’s evidence in relation to his inability to move does not satisfy me that he could not do so should he wish to. Both of the parents have moved several times in their relationship with each other, although not frequently, and they have been reasonably settled in south-western Sydney for six years. However, at paragraph 111 of his Affidavit the father simply indicates:
It would be impractical for me to relocate.
The father makes reference to his business and business contacts, that Ms B, it seems also Ms R, live in Sydney and they are, after all, the sisters of young [X]. The father also indicates, though of no significance for the purpose of this determination, that the father’s participating in [hobby omitted] is predominantly in New South Wales. The father clearly travels for that pursuit, including internationally.
When cross-examined on the issue, the father made clear that he had not made inquiries as to moving to Queensland and that it was simply not something that he had considered or would consider save and except when the question was put that if [X] were living in Brisbane that he may consider it.
When it was put to the father stridently that he could have made inquiries he simply indicated “it is not an alternative”. Beyond the reasons given in paragraph 111 of the Affidavit, it is unclear why it is not an alternative other than his personal preference. I do not accept that it is impossible or so onerous for the father to move should the father wish to maintain more frequent time, (assuming for one moment the parents lived in different States). It is no more onerous for the father to move than for the mother to stay or be required to stay in Sydney, at least to the extent that the mother does not suggest that it would be so onerous upon her that she could not care for herself or young [X].

The Family Report

The privately commissioned Family Report is a significant piece of evidence in these proceedings. That is not to elevate it beyond its status. It is part of the evidence per Andrew & Delaine [2009] FamCAFC 182. It is a significant part of the evidence, however, and commissioned from and prepared by a report writer with a significant history of report preparation. From 1984 to 2000, the report writer was the director of Court counselling of this Registry, and from 2000 until the present, 18 years, completing reports on a private basis. The Report is erudite and contains a number of important statements.
Firstly, it is, following the observation of both of the parents with young [X] (commencing at paragraph 60), made clear that [X] interacted similarly with each parent and was comfortable in passing between the parents without anxiety. That might suggest, as Mr N indicated in his cross-examination, that [X] has developed, or is in the process of developing, a secure attachment with each of the parents notwithstanding that the predominance of care has been provided by Ms Whitcomb. That [X] has developed such secure attachment is testament to [X] having been well parented, again, predominantly by his mother.
To the extent that the Case Outline document filed in Ms Whitcomb’s case suggests an equivalence of relationship that is not something which I am satisfied can be taken from Mr N’s report. Mr N’s evidence during cross-examination would appear to make clear that this was not what he was intending to suggest. There is very little to be gained from mathematising the relationship that [X] has with each of his parents, or they with him, but it is an important factor to the extent that whilst Mr N had commented on the proposals of the mother as being better than many, as already described above, he had also indicated that there were differences for [X] in each of the proposals, remembering that each parent seeks the same, albeit, mirror image arrangements that the child live with one parent and spend time with the other. If the parties were living in separate States this time would be two periods of three nights per month.
Mr N indicated that the assessment he had undertaken suggested that [X] had a good stable attachment with each parent but that if radical change were to occur that this would be more problematic for [X]. I do not suggest they are the exact words of Mr N. I am simply paraphrasing his lengthy and considered response. The more radical change was seen as [X] leaving his mother’s care, she having been a full-time carer to him save for a few weeks in early 2018 whilst in Queensland when she was participating in paid employment and remained his predominant carer.
I do not accept that Mr N’s evidence indicates that [X] is equally attached or bonded with each parent. He is certainly well-acquainted with, indeed well-attached, to each of his parents and that is a testament to them and their parenting, especially the mother’s as she predominantly parented young [X]. If nothing else, that observed bonding would tend to contraindicate the criticism of the mother that she does not support the relationship between [X] and the father. If the mother had desired to interfere in that relationship, one would think the smooth transition between the parents without anxiety, and the warmth and comfort of the interaction with each parent, would not have been observed.
It was made clear by Mr N in his recommendations that, whilst the relocation dispute was a matter for the Court to determine, that young [X] would continue to benefit from the interim arrangements in place; day only visits with his father until he turns two, which is now only some few weeks away. It was then considered that [X] would benefit from more time with his father, perhaps one full day each week instead of the current two afternoons that are occurring; Tuesdays and Thursdays, as well as introducing overnight time on alternate weekends, joining together the two individual days presently occurring. The time would then build up even further.
If relocating, and the parents living in separate States, the same considerations were seen as applying, although, it is inferred, although not expressly stated within Mr N’s recommendations, that some preference would be given to [X] living with his mother in Queensland. Indeed, the recommendation commences with that proposition. Should [X] relocate to Queensland with the mother, it would be in his best interests to maintain as much practical regular contact with his father as possible. The same situation would apply if he lived with Mr Whitcomb in Sydney. Regular, full overnight weekends are envisaged and sharing of school holidays.
There is no significant preference expressed by Mr N and I do not seek to place undue emphasis upon the proposition commencing with the mother relocating as opposed to the child remaining with the father. Certainly, it would be trite to observe, fundamental to the father’s case and perhaps touched upon by recommendation E in Mr N’s report, that the optimal outcome might be for the parents to both live in close proximity to each other and regular and significant time occur. Indeed, the optimal outcome might be for the parents to have never separated and to have remained together in a happy relationship. Certainly, that would provide this child with the lived experience of growing up in an intact family with two parents who are capable and competent and who love him a great deal.
As the High Court of Australia was clear in MRR & GR [2010] HCA 4, the Court cannot seek to attain optimal outcomes, only that which is practical in all of the circumstances. To seek to manufacture an optimal outcome as is inherently connected in some ways with the subject matter of these proceedings, would be appellable error and would be contrary to the legislation itself.
The Family Report is, I am satisfied, a balanced and helpful discussion of the arrangements which the parties both propose, augmented by the portions of cross-examination touched upon.

Approaches to relocation

This case, to a large extent, embodies what is acknowledged in numerous High Court and Full Court decisions on relocation, particularly as observed by Kirby J in U & U at paragraph 150:
Cases of fractured family units having connection with two or more jurisdictions are much more common today than in earlier times.
His Honour was, of course, discussing international relocation but, as has been highlighted in cross-examination, the distances involved between not only Sydney and Brisbane, but also Brisbane and Town M, are significant.
As Kirby J also observed at paragraph 137, relocation cases involve hard decisions which have to be made. In the same case, at paragraph 170, Hayne J observed:
What have come to be known as relocation cases present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parent’s lives, and in some cases works, to some distant place will, if the other parent does not move, necessarily affect the way in which the child's relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child, and if of sufficient age the child's wishes, all bear upon the question to be considered by the Court. In the end, the Family Law Act makes plain that Courts must regard the best interests of children as the paramount consideration but that does not deny the fact that there are at least three persons who will be affected by any order that will be made.
Indeed, in this case there are many more effected by the decision than the two parents and young [X]. There are other relatives, [X]’s sisters, Ms B and Ms R, [X]’s maternal grandparents and other relatives. All of those persons have a significant role in this child’s life. They will all be affected by the outcome but, most of all, [X]. Hayne J in U & U had also opined at paragraph 176:
It is now recognised as self‑evidently true that, apart from some cases of abusive relationships [And I pause to observe that whilst the parties each raised their criticisms there is no suggestion of an allegation of abuse, whether of a parent or child. There are certainly allegations of family violence and allegations of other abhorrent behaviours that have been, at the very least, upsetting]…children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of part VII of the Act [It is to be noted that at the time of U & U those objects were not expressed in the legislation as they now are in section 60B]. If effect is to be given to those principles, it must not be assumed that one parent, the father in this case, cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child that are paramount, not the interests or needs of the parents, let alone the interests of one of them.
I appreciate that Mr Whitcomb may hear those words as harsh. They are not intended to be so and I am sure were not intended by Hayne J to be so. They are simply an expression of that which I have already indicated. The Court must have regard to the child’s best interests as paramount in determining whether a restraint should be imposed upon a parent or whether it is possible for the other parent to relocate themselves. It is, no doubt from the perspective of Ms Whitcomb, onerous if the subject matter of the proceedings might be seen, or have been perceived by her, as a restraint upon her freedom of movement, although no such right is directly spelled out in any law of the Commonwealth.
Each of the parents would be misconceived if they perceived that relocation and restraint of relocation were the object of this case. This case is a prospective determination of what is best for [X], regrettably, made by the Court rather than the parents. Kirby J, in AMS v AIF, specifically considered commencing, at paragraph 136, nine factors which must be addressed in any relocation case and I, thus, incorporate paragraphs 136 to 150 thereof setting out those matters:
136. At least until the second half of the eighteenth century, a child born to unmarried parents, called "illegitimate", was regarded by the common law as filius nullius[109]. Consequently such a child was under the legal guardianship of nobody[110]. The applicable law was so strict that even until the end of the nineteenth century an illegitimate child was not regarded as being in the custody of anyone, even of its mother[111]. However, in Barnardo v McHugh[112], the House of Lords recognised the mother's legal right to the custody of her illegitimate child[113]. The change of direction in the law was the result of an inference drawn from the Poor Law Acts[114] imposing statutory duties on the mother in relation to the maintenance of such a child.
137. Before and after the enactment of FLA 1975 and FCA 1975, developments occurred in Australia to occasion further quite radical changes to the applicable law. The first was an alteration in community attitudes to the status of illegitimacy and the growth of the number of relationships between couples outside marriage to whom children are born. These developments led to many legislative changes. Relevant to the present appeals was the reference to the Federal Parliament by the Parliaments of all States except Western Australia of their legislative powers in respect of children. This led, in turn, to the amendment of FLA 1975 to cover all children in those affected jurisdictions: those born to married parents (nuptial) and those born to parents who were not married (ex-nuptial)[115].
138. The second development arose out of the significant increase in the number of divorces granted annually affecting large numbers of children[116]. This fact occasioned inquiries aimed at reducing the "win/lose mentality in which parents may appear to be pitted against each other to the detriment of the children"[117]. Reports by the Family Law Council[118] and by a Joint Select Committee of the Parliament[119] proposed changes to FLA 1975, addressed to applicable nomenclature, principles and procedures. Many of these proposals were adopted by the Family Law Reform Act 1995 (Cth). Those reforms were not immediately copied in the Western Australian law. However, many of them were introduced into the law of that State by FCA 1997.
139. The third development of relevance arises from the growing influence in recent years, including in this area of the law, of international law to which reference will later be made[120].
140. Relocation cases have long presented special problems for judicial decisions concerning the custody of children. But a fourth development has added to the number, variety and urgency of decisions concerning the relocation of parents having custody of a child. Two particular features of Australian society may be noted. The first is that, overwhelmingly, women constitute the residence parent to whom, in the old nomenclature, "custody" is granted. Of single parent families, the mother is reportedly the residence parent in approximately 84% of cases[121]. Accordingly, in practical terms, court orders restraining movement of a custodial (or residence) parent ordinarily exert inhibitions on the freedom of movement of women, not men[122]. Another feature of the Australian scene, not necessarily reflected to the same degree in other jurisdictions, is the very large proportion of the population born overseas, with family links to which a party to a marriage or relationship which has broken down may return with their child[123].
Relocation of a child's residence - general principles
141. This Court comes to the consideration of the arguments in these appeals with the benefit of at least thirty years[124] of consideration of like problems by appellate courts in Australia[125] and other common law jurisdictions[126]. I derive the following general propositions from the authorities.
142. First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different[127]. Necessarily, the facts of each case are unique[128]. Those facts call forth a "careful and delicate analysis"[129], which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach[130].
143. Secondly, unless legislation provides otherwise[131], no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides[132]. It is necessary for a court, making decisions affecting the child's place of residence, to attempt a resolution of often irreconcilable considerations[133]. Statute may, and commonly does, instruct that the "welfare" (or "best interests") of the child should be the paramount consideration[134]. It may provide a list of considerations or "principles" to be applied in the exercise of the court's powers[135]. However, the "paramount" consideration is not the same as the "sole" or "only" consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case[136]. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation[137].
144. Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides[138]. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule[139].
145. Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian[140] or has been designated the sole guardian[141] of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves[142], to control their own future destinies[143] and, where desired, to form new relationships[144], free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child[145]. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected[146].
146. Fifthly, whilst legislative reform[147] sometimes reflecting international law[148], has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women[149]. To avoid unnecessary derogations from women's equality or the "feminisation of poverty" resulting from the effective immobilisation of a custodial (or residence) parent[150], some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary[151]. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz[152], it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child[153]. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
147. Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas[154]. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas[155]; wishes to return to a supportive family in the land of origin[156], or has a well thought out and reasonable plan of migration[157]may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.
148. Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests[158], when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved[159]. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child[160]. Because the child's access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times[161].
149. Eighthly, although at common law the concept of custody was indivisible[162], statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm[163]. Yet even now, courts necessarily retain the power to order otherwise[164]. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court[165]. Departure from the norm of shared parental responsibility is also within the court's discretion.
150. Ninthly, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved[166]. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial[167].

The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objections are described in Goode & Goode (2006) FLC 93-286. In McCall & Clark [2009] FamCAFC 92, the Full Court referred, at paragraphs 58 to 60, that the explanation given in other relocation cases for the order in which the provisions should be applied when determining a parenting Application. Bryant CJ, Fox DCJ and Boland J went on to explain at paragraphs 61 and 62 that it will often not be an academic exercise to consider whether a child could spend equal time with parents. As such, an Order is likely to be sought by a non-relocating parent. The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation, it is inevitable that it will be dual considerations. That is so because the section 60CC factors do not take place in a vacuum, and those factors will need to be assessed in the context of competing proposals.

Legislative considerations

It is important to emphasise, as was made clear in Taylor & Barker, that the legislation does not mandate consideration of the provisions in any particular order, although it is usually helpful to start at a logical point. I propose to do so in turning to the legislative provisions and commencing at section 60CA of the Act, which reminds the Court that in all that is done the child's best interests are the paramount consideration.
I must then have regard to the objects and principles in section 60B, which I incorporate herein.
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(ii) to develop a positive appreciation of that culture.

(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

The objects do not directly bind the Court as a statutory imperative but do influence the manner in which other provisions are interpreted and implied, and suggest the outcome which the Court should endeavour to achieve.
The Court should ensure that the best interests of children are met by ensuring that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. Again, however, and as discussed by the High Court in MRR & GR, the Court’s role is not to seek to obtain an optimal outcome that is not practically available from the evidence of the parties and the Court should not strive to do so. The Court should do the best that can be reasonably and practically achieved in any circumstance. Thus, expressions such as "maximum extent consistent with the child's best interests" involve consideration of not only what is best for the child but what is practical.
Children should be protected from physical or psychological harm, although in this case, the consideration is not enlivened as neither parent suggests that it is relevant.
The Court must make Orders that ensure that children receive adequate and proper parenting. Each of the primary proposals before this Court will see that achieved. These are two competent parents and each expresses that it is so, even though each has real reservations regarding the other as a life partner.
The Court must also make Orders that ensure that parents fulfil their duties and meet their responsibilities. There is no substantial complaint that these parents have not met their duties. That is with the possible exception of child support, with respect to which the mother is critical of the father. To date, there has been no assessment of child support and, thus, the criticism is, perhaps, pre-emptive and unwarranted. There is nothing on the evidence to suggest that either of these parents requires guidance or direction by the Court as to what their duties and responsibilities are or how those responsibilities are to be met, nor any suggestion that an Order would be required to ensure those duties were fulfilled. Each parent will meet their duties and responsibilities.
The Court is left to make Orders that will achieve a meaningful involvement by each parent in [X]’s life. A meaningful involvement is not described by the legislation. It is what is achievable and practicable.
The principles underlying the objects create what might be described as rights for young [X]. They are not absolute. They are subject to the caveat that they are neither enlivened nor practiced when to do so would be contrary to his needs and best interests. However, that caveat aside - and I make clear it does not apply in this case - children have the right to know and be cared for by both of their parents, the right to spend time and communicate with both of their parents and others of significance to the child, the right to have parents share duties and responsibilities and agree about future parenting, as well as a right to enjoy culture.
I do not mean to be at all pejorative by suggesting that culture is not an issue in this case, the father being from a [nationality omitted] background, the mother Australian. I do not suggest that [country omitted] and Australian culture are homogenous or identical. However, they are not that dissimilar that it would cause any real issue and neither party suggests that it is so.
The rights of this young child to have his parents share duties and agree on future parenting cannot be achieved in this case. It falls to the Court to determine those duties and responsibilities and their allocation.
The child's right to know and be cared for by both parents and spend time and communicate with both can be determined. However, that is not to suggest that there must be equality. Indeed, neither parent proposes that there would be, even if the parents live in close proximity. I will return to those rights by reference to section 60CC of the Act, to which I will shortly turn.
I must have regard to section 61DA, the presumption of equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or abuse. Again, I do not disbelieve the evidence of either party with respect to their allegations in this regard. If each were accepted as an accurate historian with respect to those matters, the presumption could not apply as there would be reasonable grounds to believe that each parent has engaged in such behaviour. However, there is no need for such findings to be made, and neither parent agitates that an Order would be made other than for equal shared parental responsibility. I can infer that neither proposes that the presumption would be treated as non-applicable or rebutted. Similarly, the presumption, if it applies, is rebutted by evidence that is contrary to the child's best interests. Neither agitates that it is so and I am satisfied that the evidence would not compel that a finding be made. Accordingly, I propose to apply the presumption.
That being so, the Court must then consider equal and substantial and significant time before any other time arrangement. As already observed, neither party seeks an Order for equal time. The parties might well be taken to be proposing Orders for substantial and significant time. I will consider all time arrangements at large by reference to section 60CC, to which I now turn.
I must commence with the primary considerations, being the benefit to the child of a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The latter is prioritised over the former by subsection (2A), although in this case, there is no need for that consideration to be further pursued. Neither suggests risk. Neither suggests that the child will be exposed to such disadvantage by the other.
That leaves the Court with the more positive consideration of the benefit for [X] of a meaningful relationship with both parents. That phrase, of course, was discussed by Brown J in Mazorski & Albright [2007] FamCA 520 and as approved by the Full Court of the Family Court of Australia. For the relationship to be meaningful, it must be meaningful to the child. It must be a relationship of importance that enables the child to develop a sense of identity as well as a sense of connection with each parent. The proposals of each party will permit that to be so, and indeed, there is some comfort on the basis that each party seeks identical relief or near-identical relief, that it might be achieved on any proposal. Thus, it cannot assist, to any great extent, in determining the issue. Save and except to again observe the evidence of Mr N. Mr N opined that whilst the child has a warm and secure attachment with each parent, as was conceded by Mr N in questioning by Counsel for Mr Whitcomb, the child would experience disadvantage if his relationship with either parent were curtailed to any significant extent. That disadvantage would carry short, medium and long-term difficulties for him. Those difficulties apply equally regarding curtailment of his relationship with either parent. That evidence, when taken in combination with Mr N’s evidence, that the greater, the more radical the changes, then the more pronounced those disadvantages might be or become. Some very slight support is provided to the mother's position by that evidence as the child passing from the mother’s care is the greater and more radical change.
Criticism is also raised that the mother, directly and through her family and friend network, including her mother, Ms Whitcomb, are somewhat hostile and antagonistic towards the father, and thus, the greater the distance that is involved and the less frequent the practice of relationship, the more real the risk that the relationship between father and child will be damaged. I have some difficulty with that proposition on a number of bases.
Firstly, the warmth of relationship between the father and child as observed and commented upon by Mr N, would suggest that even if those attitudes are held, they have not impacted the child. That may be through either such views having not being expressed to him or possibly the child simply not being responsive to them. In all probability, the former. Irrespective of the distrust, indeed, in the case of Ms Whitcomb, dislike - although I do not seek to castigate or criticise her beyond that - this child has developed a meaningful relationship with each parent, (to the extent that such language is relevant for a child of this age, presently in an important phase of bonding and attachment rather than relationship formation). As already observed, if the mother had wished it to be different, there are many steps, actions or inactions that could well have led to that position. They have not. I accept that the mother is supportive of the relationship between child and father.
The fact that a parent may not hold the other parent in high regard does not mean that they do not value the importance to their child of the child holding their parent in relatively high regard and having a meaningful relationship with them. The mother has done all that is required of her to facilitate it.
I do not accept that the mother having relocated to Queensland and the gap in relationship or practice thereof, which occurred consequent thereupon, is solely a criticism of the mother. Both parties are to blame for the fact that nothing occurred regarding face to face time in that period. Whether equal blame or not, I need not determine. Each had a role to play in why it was so. But that is somewhat ancient history. The mother, subjected to an Order to return the child to Sydney, did so. That is not to congratulate the mother for complying with the Court's Order. Litigants should do as ordered. However, that has caused some disadvantage for the mother financially and socially. She has returned. She has supported the relationship. There is no complaint of significant difficulty with this practice, either in compliance with the Order or support of the relationship such that the child is well-presented, well-prepared for time and able to enjoy that time.
Further, there is a similar distrust and lack of warmth exhibited towards the mother and Ms Whitcomb, by the father as well as by Ms B. Ms B’s evidence was compelling, not to prioritise it beyond the evidence of any other witness. She was tearful and emotional in her evidence and readily conceded that the criticisms that were raised of the mother in her Affidavit were and, perhaps, could have been balanced by positives. She made clear that she did not consider that Ms Whitcomb was a bad mother. She indicated that she put in the Affidavit what she was asked about. It may be that she was not asked for positives. That would be regrettable.
An Affidavit should be a balanced discussion, not merely criticism. Indeed, in this case, the criticisms have largely been irrelevant to the capacity of these parents as parents. I genuinely accept that each holds real recriminations regarding the other and how the other has acted in their relationship and towards them. But that is their relationship as intimate partners, not their relationship as parents. Notwithstanding all of their difficulties, these parents have co-parented their child warmly and lovingly since birth.
Ultimately, I am satisfied that those criticisms of the mother and her capacity, as well as that of her extended network of support, to support the father's relationship are largely unwarranted. To the extent that those criticisms have any validity, they are balanced by similar criticisms of the father and his network.
The primary considerations lend little support to either parent but, to the extent they do, they favour the mother's case.

Additional considerations

Views

As would be apparent, this young lad, not yet two, is not able, through expressive speech, to indicate a view. He is not able to or has not, through his language, behaviour, articulated, expressed or presented a view. He interacts warmly with both parents. They are clearly both people of importance to him. He was not observed with Ms B or his other extended family members, but I wholeheartedly accept the importance of those relationships.
For the purpose of the primary considerations, as Burton & Churchin& Anor [2013] FamCAFC 180 makes clear, it is the relationship of the parents that must be considered. I will now turn to those other relationships of importance to [X]. However, to the extent that one might suggest a view held out by this child, it is simply not so. Neither party, to their credit, advances that as a support of their case.

Nature of the child's relationships with each parent and other persons

This young lad enjoys close relationships with both parents. The predominance of care has, to date, been provided by Ms Whitcomb. Ms Whitcomb has been largely absent paid employment, through agreement between the parties, such that Ms Whitcomb has been the predominant parent whilst the parties lived together. The quality of care provided to the child is unquestioned. [X] might, in all probability, although Mr N did not go so far as to be definite or concrete in the assertion, have a greater attachment to his mother. Whether it is so or not need not trouble me. Each parent has a secure attachment. I have already addressed the parents' relationships by reference to the primary considerations.
This young lad's relationships with Ms B, Ms R, Ms Whitcomb and many others are not clearly addressed in the evidence. I accept that Ms B has had a role to play, perhaps not significant but important, in providing care for this child in the past, both during periods that she lived in the same household and otherwise. She is, after all, the child's sister. They are important relationships, but it does not dictate the Orders that might be made. If Orders were made, as proposed in the alternative by Mr Whitcomb, that should Ms Whitcomb remain living in Sydney that Ms Whitcomb would continue with the predominant care of the child, I accept that it would be far easier for Ms B to practice a relationship with her brother [X]. Ms B has restrictions on her ability to have time from work and is in employment that is not particularly well-remunerated. Whilst it would be easier for Ms B to practice a relationship with her brother more abundantly if he lived in Sydney, it is not impossible for that relationship to be practiced over distance. To the extent that there are diminutions in relationship which might be experienced over distance, they must be balanced against the importance of the child's relationship with parents. It is a factor which is largely neutral but might provide some slight support to Ms Whitcomb’s position.

The extent to which each of the parents has taken or failed to take the opportunity to participate in decision-making, spend time or communicate with the child

This factor, together with the manner in which it was previously drafted prior to the June 2012 amendments, when contained at section 60CC(4), is somewhat neutral. Whether one considers the extent to which a parent has failed to participate or the extent to which a parent has interfered in participation, there is simply no evidence that suggests it is a factor in this case. Each was culpable of either rejecting or failing to facilitate time in the period from December 2017 to February 2018. Each has done what is required of them since and has clearly demonstrated and acted upon a desire that this child develop a good relationship with both parents.

The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

As indicated, there is no child support assessment at present, and thus no criticism could be raised. Indeed, it is a positive in the case of Mr Whitcomb that he has, albeit on the basis of an Order of the Court but readily submitted to, provided Ms Whitcomb with $385 per week to contribute to her expenses, having returned to Sydney. Whether that continues or not into the future, the Court cannot bind. It is a matter for the Child Support Registrar. It is unlikely that an assessment will be of equal quantum.

The factor does have some relevance. To the extent that it is suggested on the mother's proposal that she will contribute equally to the father's costs of travelling to Queensland and the father protesting that he simply cannot afford it, the factor is relevant. If it has been affordable, for the last 12 months or so, albeit, I accept, with financial impost on the father, there is no reason to suggest that those funds, particularly noting the child support assessment formula on an income of $31,000 as disclosed in Mr Whitcomb’s 2013/14 return, would be vastly less than that amount, could not be used to fund travel relatively frequently. That is not a cure-all. The test is not “can it be afforded” and, if so, it should be ordered. The test is what is best for this child. But it does speak to and demonstrates practicality when practicality is denied by Mr Whitcomb.
There is an artificiality of Mr Whitcomb travelling to Brisbane to spend time with this little boy. It is not time within his home. It is not time that enables the child to participate as part of the father's household. Section 65DAA(3) of the Act, defining substantial and significant time, might suggest that these are important matters. Indeed, they are. The development of a relationship is more than simply spending time with a child. It is what one can do with that time, putting the child to bed, putting them down for naps, giving them meals, giving them baths, et cetera. If that is occurring, for example, in a hotel room, it is not the same as occurring in the father's home where the child has his own bedroom. It may change each visit. It is nowhere near as ideal for the development of a relationship as a more regular arrangement. However, it is what is practicable, and to the extent that the factor of financial responsibilities is addressed, it is a matter of what the parents can do to make it as normal as possible. It is a fairly neutral factor otherwise.

Likely effect of change, including separation from either parent or any other child or person

There are myriad changes this child has already experienced. During his brief life, he has had one or other of his sisters live in the same household and move out. During his brief life, he has had his parents separate, first under the one roof, then physically. During his brief life, he has couch-surfed, albeit for relatively short periods of time, whilst his mother has been looking for accommodation. During his brief life, and on the basis of either parents' proposal, there will be separations. If the mother relocates to Queensland, there will be less frequent time between he, his father and his sisters. If the mother were to relocate to Queensland, (although she makes clear she would not do so without [X]), and [X] were to live with his father, there would be a significant separation between the child and the mother. Indeed, by reference to Mr N’s evidence, as already discussed, I am satisfied that this would be the most significant of the actual or potential separations.
If both parents are living in the same suburb, which of necessity, if it were to occur, would seem to be Sydney, this little boy will be separated from others, his maternal grandparents. As already observed, there is no real impediment to Mr Whitcomb relocating to Queensland should he wish to do so. They are matters entirely of his choice. The Court has no jurisdiction to compel it, and even if such jurisdiction existed, it would be unlikely it would be appropriate to exercise it. Part of the mother's proposal is that she will live, at least some of the time if not predominantly, with her parents. That will provide her with support and assistance and important relationships for this child. Thus, the disadvantages are equal for this child, as are the advantages. The factor does not assist as dispositive.

Practical difficulty and expense

It is trite to observe there would be more practical difficulty and expense if the mother is living in Queensland and the father in Sydney than if both parents live in the same part of the world. There is practical difficulty if the mother is required, against her will to live in Sydney, with no employment or family support. But these are the choices both parents make. The mother wishes to move and, if her proposals are favoured, will. If the father then determines that he will remain in Sydney, that is his choice. It is not an Order of this Court that he cannot move any more than the Court could compel him to move.
The practical difficulty is largely geographical, although it also exists in the distrust between the parents, although that should not be overemphasised. These parents have been able to make decisions in relation to this little boy. They are able to communicate relatively effectively. The fact that they do not communicate a great deal, and at times, when they have communicated, they have expressed their anger or frustration, more so perhaps in the case of Mr Whitcomb, or have felt oppressed by that communication, more so perhaps in the case of Ms Whitcomb, they have been able to negotiate what is necessary. These are not parents who must have all of their dealings through a third party or their lawyers. They can communicate when required and with relative civility.
Accordingly, the major difference will be how far apart the parents live. Obviously, that is a factor which is brought to bear more fully upon the determination if the mother relocated.

The capacity of each parent

Both parents are entirely capable of meeting this little boy's needs. It does not assist.

Maturity, sex, lifestyle and background of the child

This is a little boy not yet two. His young life has been horribly fractured to date, although he has, thankfully, been largely protected from the disadvantages of those experiences. He is a little boy who has much parenting ahead of him. Both of his parents should play a role in that. Both of his parents will, on any proposal. He is a little boy who requires stability, and perhaps the compelling piece of evidence that speaks to the factor is Mr N’s evidence, that the more dramatic the change, the more likely the child would experience disadvantage. That provides some support to the mother's proposal.

Aboriginality

Aboriginality is not raised. Neither party identifies as Aboriginal or Torres Strait Islander, thus nor does the child.

Attitude to the child and the responsibilities and duties of parenthood

The parents are equal in this regard.

Family violence

Whilst I have indicated that findings need not be made, the allegations that are raised are not discounted nor disbelieved. It is simply that they need not be pursued to finding and they do not impact upon this determination. There is no need to protect the child. There is no suggestion that either parent will be unable to deal with the other, in the future, to the extent that they will need to deal with each other to facilitate arrangements.

Family violence orders

There are none.

Whether it is preferable to make orders that will least likely lead to the institution of future proceedings

There is little that can be done in this regard. It is submitted, in the father's case, that the greater the distance and the greater the expense and difficulty involved in facilitating the relationship, the more certain it is that arrangements will break down. I am satisfied that this is an unduly pessimistic view.
The parents can make arrangements work, whether they live in the same suburb, the same house or in different states. It is a matter of their commitment to making it work and being solution-focused rather than seeking to sit back and watch it fall apart. These parents are capable of making the arrangement work and both are committed to making any arrangement work, as they both stridently desire a relationship with this little boy and both want him to be happy in what remains of his childhood.

Other facts and circumstances

There are none that would appear particularly apt.

Conclusion

It was submitted in the closing of Mr Whitcomb’s case that the matter is not finely balanced. I beg to differ with that proposition. It is a very finely balanced decision. It is also a very difficult decision for any Court to make. As was observed by Kirby J, in the passages referred to above, when a judicial officer determining proceedings is fully aware of the consequence of the determination, the Judgement will be perceived as the entire frustration of one party's legitimate interests and expectations, it is a heavy weight.
If the mother is compelled to remain living in Sydney, because of an Order that young [X] live with the mother conditional upon her being resident in Sydney, the mother will perceive that as frustration of her legitimate interests and expectations. That will bring disadvantage for the mother, and whilst the child's best interests are paramount, a child’s interests are not disconnected from parents. This little boy cannot function for himself in the world. He needs care, nurture and support. I do not suggest that the mother has given evidence - she plainly has not - that she cannot and will not cope if required to live in Sydney. But such a requirement will diminish her experience of life. She will be socially isolated, to a large extent. She will be financially disadvantaged. Thus, [X] would, in her care, be financially disadvantaged, and it is conceded that if the mother were in Sydney, [X] would predominantly live with his mother.
I am not satisfied that there is evidence to support the submission of the father that the mother has gone to great lengths to retain [X] from the father, whether in the period of the initial relocation or since. Quite the contrary. I am not satisfied that there is any pessimism as to the mother's support of the relationship between the child and [X] or her proposal that she meet one half of the father's air fares in doing so.
In those circumstances, and by reference to the balance of the matter and the factors addressed and considered above, I am satisfied that the mother's proposal should be favoured, not through any overwhelming weight of evidence or any individual consideration. I am satisfied that this is the arrangement that is in the child's best interests. It will continue a continuity and consistency of care, not suggesting that the developed status quo, as it might historically have been referred to, is in any way relevant to the determination of the issue. It is simply by reference to Mr N’s evidence that the more dramatic the change, the more disadvantageous it will be for young [X]. That is not to suggest that there is anything but advantage for this child having as much time as possible with each of his parents. However, that is simply not possible if the parties, on their proposals and a determination and preference between them, are to live in different states to each other.
I am satisfied, on balance, that the Orders proposed by the mother best meet the child's needs and interests. Accordingly, I make Orders in accordance with the Minute of Order filed by the mother with her Case Outline document, which will be, for present purposes, marked as exhibit A, signed and dated by me today.
Those Orders will provide that the parties will have equal shared parental responsibility, as they each propose, that [X] will live with his mother, shall spend time with his father for two periods per month of three consecutive nights to occur in Queensland, for four seven-day blocks to occur at any time in the year, and to occur wherever the father may desire, subject to restraints upon overseas travel, but which are also addressed within that minute.
I am conscious that I have not discussed any reasons as regards Orders to facilitate the obtaining of a Passport or overseas travel. However, each party seeks Orders that, again, are identical or close to it in that regard. The Orders verge upon being made by consent. There is nothing to prefer one proposed wording over the other.
The other observation that must be made with respect to the periods that would occur in Queensland are two-fold.
Firstly, clearly it is intended that the periods would occur somewhere within the vicinity of where the mother lives. It is not intended, for example, that the child would be collected in or about Brisbane and then driven to Town O. I accept that both parties are of a similar understanding and would be sensible and pragmatic in that regard.
Secondly, there is no constraint on when those periods occur. They need not be confined to weekends. Accordingly, it may well be that the parties, through judicious joinder of Frequent Flyer programs and by having periods, subject to practicality, work arrangements and the like, during the week, bearing in mind this young lad will not start school for quite some years, may be advantageous for all. It may reduce cost and accommodation expenses. It may well provide some assistance to the mother if she is working by not having to organise child-minding. It will provide the father with an abundant opportunity to spend time with the child when facilities are, for example, less crowded. But it is a matter for the parties to negotiate those arrangements in the future. I simply wish to make clear there is no constraint saying that a three-consecutive-night period must correspond with a weekend. It is whenever the parties can facilitate it to their best advantage.

I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 4 December 2018

[2018] FCCA 3486

7 November 2018

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