Whiteside and Whiteside

[2014] FCCA 818

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITESIDE & WHITESIDE [2014] FCCA 818

Catchwords:
FAMILY LAW – Interim parenting relocation on urgent medical grounds – best interest considerations for four young children – Mother’s decision to relocate said to have been made after taking trip to (omitted) Queensland from country New South Wales – likely effect on children’s relationship with ‘left behind parent’.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(3)(a) – (i), 61DA, 65DAA

Federal Circuit Court Rules 2001, Division 2.1

A v A: A Relocation Approach (2000) FLC ¶93-035
Cales v Cales (2010) 251 FLR 454; (2011) 44 Fam LR 376
Collu & Rinaldo [2010] FamCAFC 53
McCall v Clark (2009) 41 Fam LR 483
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Morgan v Miles (2008) 38 Fam LR 275
MRR v GR (2010) 240 CLR 461
Shaeffer v Jacobs (2011) FLC ¶93-468
Sigley v Evor (2011) 44 Fam LR 439

Applicant: MR WHITESIDE

Respondent: MS WHITESIDE

File Number: CAC 236 of 2014

Judgment of: Judge Neville

Hearing date: 28 February 2014

Date of Last Submission: 12 March 2014

Delivered at: Canberra

Delivered on: 3 April 2014

REPRESENTATION

Solicitors for the Applicant: Maggie Orman Pty Ltd, Wagga Wagga (until 25 March 2014; then Father self-represented)

Solicitors for the Respondent: Jones Mitchell Lawyers, Southport, Qld

Solicitors for the Independent Children's Lawyer: Strong Law Pty Ltd, Canberra

ORDERS

UNTIL FURTHER ORDER

1. The parents are to have equal shared parental responsibility for all of the children W (born (omitted) 2006), X (born (omitted) 2006), Y (born (omitted) 2011) and Z (born (omitted) 2013) (“the children”).

2. The children Z and Y are to live with the Mother in Queensland. 

3. The Father may speak with and or spend time with Z and Y when he is able to be in Queensland with arrangements to be made by prior agreement with the Mother upon giving 48 hours’ notice.

4. The Father may speak with Z and Y regularly (to the degree possible) by Skype as agreed.

5. Absent any other agreement in writing between the parties, until the end of the NSW first term school holidays, the children W and X are to live with the Mother.  Thereafter, as from the last weekend of the NSW first term school holidays, they are to reside with their Father and resume their schooling in (omitted) and communicate with their Mother via Skype and/or telephone at least each alternate day.

6. Pursuant to section 62G(2) of the Family Law Act1975 (‘the Act’) the parties and the children of the relationship attend upon a family consultant in the Brisbane Registry on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act.

7. The matter be listed for an expedited hearing on a date and venue to be advised.

8. The matter be adjourned to a date and time to be advised.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 236 of 2014

MR WHITESIDE

Applicant

And

MS WHITESIDE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting matter of some complexity and not without some urgency.  It involves four young children (aged between 7½ and 8 months), a Mother with significant medical issues who, on her own evidence, has relocated to the (omitted) Queensland without the Father’s consent or approval, and the Father, who continues to work and reside in country New South Wales, in the thriving inland city of (omitted).[1]

   [1] The older two children are aged 7½ and 6 (W and X); the younger two children are aged 2 and 8 months (Y and Z).  The distance between (omitted) and (omitted) is approximately 1300 kms, and a drive of some 15½ hours.

2. The Mother says that she only formed a view about relocating once she had arrived in Queensland and saw how well and happy the children were.  The Mother and the Father had formerly lived on the (omitted) Queensland until 2010 and both of them have family in the area.  The parties separated in early 2013.  They lived in (omitted) following the separation for approximately one year and co-parented the children.  The competing accounts of how successful that was are set out later in these reasons.

3. The Mother’s medical conditions relate primarily to her thyroid and the removal of a tumour from it.  However, because of a blood disorder, the surgery she required could not be performed in (omitted) because there was not a haematologist available.[2]  The only centres that had the relevant medical expertise were Sydney, Melbourne and perhaps curiously but no doubt fortuitously if not providentially, (omitted) Queensland.  Unsurprisingly, the Mother chose (omitted) Queensland because of the family support available to her.

   [2] The relevant condition is Von Willebrand’s disease, which is similar to haemophilia.  It affects the frequency and bleeding in mucous membranes.

4. Briefly and summarily stated, the Father seeks orders that the Mother and the children return to (omitted) New South Wales.  Alternatively, he seeks that all the children, except the 8 month old baby, be returned to him and the baby remain living with the Mother until her recovery is complete or sufficient for her return.

5. The Mother seeks orders whereby all the children remain living with her and that they spend time with the Father whenever he is in the (omitted) Queensland area.  This would mean, on an interim and on a final basis, that the Mother be permitted to ‘relocate’ to and remain living on (omitted) Queensland.

6. Put briefly, no orders in the matter are or can be completely optimal for all, including the children. Indeed, all options before the Court have negative dimensions for all, including the children. The Court must ultimately choose the least problematic or least negative of those options when determining, on the conflicted evidence and immense logistical difficulties now before the parties, the orders that are in the children’s best interests, as the Court is required to do, pursuant to s.60CA of the Family Law Act1975 (“the Act”).

7. Put even more bluntly, without attributing fault to anyone, it might even be said that the factual circumstances have conspired to place a gun at the head of the Court (and the Father also) regarding the relocation application.  The Mother’s actions, coupled with her recovery from surgery and perhaps on-going care, mean that, at the moment and possibly for some time to come, all the travel – and very significant travel – falls at the feet of the Father.

Orders Sought

Applicant Father’s Orders Sought

That the below mentioned orders be sought with respect to all children, namely W (date of birth (omitted) 2006), X (date of birth (omitted) 2007), Y (date of birth (omitted) 2011), and Z (date of birth (omitted) 2013).

That the proceedings subject to this interim order, and any other related proceedings, remain within the current jurisdiction, sitting in Canberra, where His Honour maintains continuity of the proceedings given his involvement to date, the proximity to where the applicant resides, and the children’s home base.

That through the respondent’s medical practitioner, the respondent supply the court detail of the procedures undertaken and account for the respondent’s anticipated recovery period.

That the children return to their home in (omitted) New South Wales as soon as practicable, but no later than the recommencement of schooling, at (omitted) Primary School (omitted) New South Wales, on 28 April 2014.

That between now and the return of the children to (omitted) New South Wales, should the father have opportunity to return to Queensland, he is afforded reasonable opportunity to have care of his children outside the conditions made herein. That this care encompass a period up to and including five (5) consecutive days and five (5) consecutive nights.

That one week notice is supplied by the applicant, to the respondent, in writing if this opportunity eventuates.

That on return to (omitted) New South Wales, the children shall have separate time with the applicant and the respondent mother throughout a rotational four (4) week cycle as follows; 

Weekend 1- The three eldest children to spend 24 hours commencing from a 5 pm pick up on the Friday afternoon. The Youngest child, whilst still being breastfed, will be made available for a minimum period of two hours at a suitable time during the aforementioned 24 hour period.

Weekend 2- The three eldest children to spend 24 hours commencing from a 5 pm pick up on the Saturday afternoon. The Youngest child, whilst still being breastfed, will be made available for a minimum period of two hours at a suitable time during the aforementioned 24 hour period.

Weekend 3- The three eldest children to spend 48 hours commencing from a 5 pm pick up on the Friday afternoon. The youngest child, while still being breastfed will be made available for a minimum period of 2 hours at a suitable time during each 24 hour period.

Weekend 4- All four children to spend the weekend with their mother. 

In the absence of the respondent from (omitted) New South Wales, that W, X, and Y reside with the applicant father on a full time basis, until such time the respondent mother returns to (omitted) New South Wales. (That consideration in this regard is provided to the trauma created by not separating Y from her siblings.)

In the absence of the respondent from (omitted) New South Wales, Z continues to reside with the respondent mother at her respective location.

In furtherance to the abovementioned, significant days required alternate rights. The children be permitted to be with the applicant father for the following timings on significant occasions including:

Christmas – From 1pm Christmas day until 10am the following morning.

Easter – From 5pm the previous day until 10am Easter Sunday.

Children’s birthdays – at the discretion of both applicant and respondent, either between the hours of 4pm (on the day of the birthday) and 9am the following morning, or alternatively 5pm on the preceding day to 9am on the morning of the birthday.

Applicant birthdays – from 5pm the preceding day until 9am the day following the relevant birthday.

Extended family birthdays (i.e.  grandparents and cousins) – from 9am to 6pm on the day of the relevant birthday if appropriate due to schooling etc.

Unforseen significant events – allowance for flexibility in a fair manner. The children are not to be disadvantaged by exclusion from important family occasions.

Pending the return of the respondent to (omitted) New South Wales, in the circumstances of changeover, the respondent and applicant communicate to identify a neutral location, a distance central to both addresses, and convenient to both respondent and applicant. I suggest (omitted) McDonalds. Any change, potentially entailing a collection, or drop off, to either person’s residential address is to be requested and approved in writing.

That the timings provided in this order be absolute without need for further communication, except in circumstances whereby provision applies to alternative arrangement as applicable on significant dates, and/or unforseen circumstances.

That the children continue to live in (omitted) New South Wales.

That the children not travel beyond a 400km radius from (omitted) New South Wales without the express consent of the other party.

That consent in writing is obtained at least 48 hours prior to travel.

That detail of the intended travel, location, and return dates be particularised in same writing.

That any intended travel does not interfere with the schooling and social activities of the children, without express consent of either party.

That this order does not limit the assistance provided by the extended family, of either the respondent or applicant, or accredited professional, in the care of the children on demand, or due to unforeseen circumstances.

That this assistance be specifically granted to Ms H in the absence of the respondent.

When the children are in the care of the respondent, the respondent allows private and uninterrupted verbal communication with each child between 5.30pm and 6.00pm with the applicant to initiate telecommunication contact.

When the children are in the care of the applicant, the applicant allow private and uninterrupted verbal communication with each child between 5.30pm and 6.00pm with the respondent to initiate telecommunication contact.

That recommendation twelve (12), thirteen (13), fourteen (14), fifteen (15), and sixteen (16) of the respondent’s interim order suggestion be complied with.

That the respondent be solely responsible for any cost incurred to herself as a result of these proceedings, directly relating to the respondents removal of the children from (omitted) New South Wales.

Family Consultant

With respect to any order pertaining to the appointment of an expert Family Consultant, I seek your Honour’s wisdom and fairness in that regard, with the following considerations;

That within this order, His Honour provides strong consideration to the respondents suggestion she be the sole authority in choosing a panel. That safeguards be applied so that any potential panel member may be drawn from an area in proximity to the applicants location, and the family base of the children, i.e. (omitted) New South Wales and/or surrounds.

That both the applicant and respondent share costs in relation to events/communications leading to the preparation of any Family Consultant report.

Respondent Mother’s Orders Sought

That the matter be transferred to the Federal Circuit Court of Australia sitting in Brisbane or alternatively the Southport Circuit.

That the parties have equal shared parental responsibility for all of the major long term issues regarding the children, W born (omitted) 2006, X born (omitted) 2007, Y born (omitted) 2011 and Z born (omitted) 2013 (“the children”).

Notwithstanding the provisions of Order 2:

The Father shall be responsible for the daily care, welfare and development of the children when the children are living with him; and

The Mother shall be responsible for the daily care, welfare and development of the children when the children are living with her.

That the children live with the Mother on the (omitted) Queensland.

That the children live with and spend time with the Father at all such times and upon such arrangements as the parties may agree, but failing agreement, as follows:

That the children, W, X and Y, spend time with the Father on the (omitted) Queensland from 5.00 pm Friday to 5.00 pm Saturday and each week thereafter that he is so able to do so; and

That the child, Z, spend time with the Father on the (omitted) Queensland from 5:00 pm to 6:00 pm Friday and from 4:00 pm to 5:00 pm Saturday and each week thereafter that he is so able to do so; and

On each of the children’s birthdays on the (omitted) Queensland, between 4.00 pm and 6.00 pm in the event that it is a week day and the children are not otherwise spending time with the Father on that day and between 12.00 pm and 4.00 pm should that birthday fall on a weekend and the children are not otherwise spending time with the Father.

Notwithstanding any other Order, the children shall be with the Mother:

Between 4.00 pm and 6.00 pm should the children’s birthdays fall on a school day and the children would not otherwise be spending time with the Mother on that day; and

Between 12.00 noon and 4.00 pm should the children’s birthdays fall on a weekend when the children would not otherwise be spending time with the Mother on that day.

That the Father’s time provided for in Order 5 above is conditional upon him providing to the Mother written confirmation of his intention to spend time with the children in accordance with these Orders not less than 48 hours prior to such time occurring.

For the purposes of effecting changeover, the children shall be collected and returned to their Mother’s residence on the (omitted) Queensland.

That the children, W and X, attend at (omitted) School on the (omitted) Queensland.

General

That the Father be responsible for supervising the children whilst they are in his care pursuant to these Orders.

That each party be at liberty to communicate with the children during those periods when the children are not in his/her care, including (when the children are of an appropriate age) communication by letter, email, text message and any other electronic means, and by telephone each evening between 5.30 pm and 6.00 pm with the Father to initiate the call and for the Mother to otherwise ensure that the children are free to speak on the phone. 

That the Father and the Mother shall:

Keep the other parent informed, at all times, of their residential address, email address, landline and mobile telephone numbers;

Keep the other parent informed of the names and addresses of all treating medical or other allied health practitioners who treat the children, from time to time, and authorise those practitioners to provide the other parent with all information they are lawfully able to provide about the children; and

Inform the other parent, as soon as is reasonably practicable and by the best means available, of any medical condition, significant health issue or illness suffered by the children and in the event of the children being admitted to hospital for emergency treatment, treatment by an ambulance crew, or being taken to a medical practitioner for urgent treatment following any incident, injury or sudden illness.  This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.

That not any of these Orders shall prevent either the Father or the Mother from having either or any of the children treated, as a matter of urgency, for any sudden injury or acute illness or other medical or dental emergency which may have arisen in relation to either or all of the children during their respective periods of care, but in the event of such treatment being required, the parent arranging such treatment shall immediately and by the best means available notify the other parent of the following details:

The name and contact details of the medical professional administering the treatment;

The medical or other complaint for which the child was taken to the medical professional; and

Any treatment and/or medication prescribed for or provided to the children and the reasons for the prescribing or provision of such medication and/or treatment.

That the Father and the Mother authorise, by this Order, the day care centres, pre-schools and schools attended by the children, from time to time, to give each parent information/documentation about the children’s educational progress and other day care centre/pre-school/school-related activities and to supply to each of them copies of school reports, photographs, certificates and awards obtained by the children (at each parent’s own cost).

That the Father and the Mother shall be at liberty to contact the day carers, directors, teachers and principals of any day care centres, pre-schools and schools attended by the children, from time to time (by telephone, in writing or in person), in order to obtain the information/documentation referred to in Order 14.

That during all of those periods when the children are living with the Father and the Mother in accordance with these Orders, the Father and the Mother shall each:

Respect the privacy of the other parent and not question the children about the personal life of the other parent;

Speak of the other parent respectfully; and

Not denigrate or insult the other parent or members of the other parent’s family, their friends or their partner/spouse to or in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent or members of the other parent’s family, their friends or their partner/spouse to or in the presence or hearing of the children.

Family Consultant

That an expert be appointed as a Family Consultant in this matter to prepare a report pursuant to Section 62G of the Family Law Act 1975.

That within 5 days of the making of these Orders, the Mother shall provide a panel of proposed family report writers to the Father.  Within a further 5 days the Father will choose from that panel.

That in addition to reporting any matters that the Family Consultant considers important to the welfare of the children in the factors contained in Section 60CC of the Family Law Act 1975, the following opinion should be included:

What, if any, intervention might assist the parties to achieve a cooperative parenting regime;

What, if any, intervention would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the children in the future;

Whether it would be in the children’s best interests to remain living on the (omitted) Queensland with the Mother; and

What, if any, further professional reports should be obtained in relation to either parent or either or all of the children that may be relevant or assist the court in determining what an appropriate regime may be for the children.

It should be noted that a child should not be required to express his or her views in relation to any matters but in the event that a child does express a view, the Family Consultant should also canvass and report the views and likely consequences of them for the child if the court did not reach a conclusion which accorded with the views.

The parties shall attend appointments with the Family Consultant on a day and time to be advised by the Family Consultant and they shall facilitate the attendance of the children for those appointments.  In the event that the Father is not available to attend the appointment with the Family Consultant then he is to make himself available by telephone.

That the Father be responsible for the costs associated with the preparation of the Report.

Further Orders

That the Father be responsible for the Mother’s costs of and incidental to these proceedings.

Such further or other Order as this Honourable Court deems appropriate.

Factual Background

1. There is no dispute that the Mother and the children left (omitted) New South Wales for the (omitted) Queensland on 8^th February this year.  The Mother says that she now seeks to remain on the (omitted) Queensland permanently, while the Father seeks to have the Mother and children return to (omitted) New South Wales.  He maintains that he did not consent to the relocation on either a permanent, or an interim basis.

2. Typically, the Court is in the invidious but not unusual position in an interim proceeding of dealing with evidence which is largely of a ‘he said-she said’ kind.  Shorn of much of the detail contained in the affidavits filed so far, the respective positions are as follows.

The Father’s Material

1. The Father says that the family has lived in (omitted) New South Wales since 2010.  He works full-time as a (omitted).  The family had formerly lived on the (omitted) Queensland.  The older two children had been attending (omitted) Primary School in (omitted) New South Wales.  The Mother had been employed by (omitted) for 2 days per week as a (omitted).  The Father’s work as a (omitted) sometimes requires him to be away interstate and occasionally overseas.

2. The Father says that on 8^th February 2013, while he was absent from the marital residence in (omitted) New South Wales, the Mother moved all but a few items of furniture out of the home such that the Father was unable properly to care for the children.  The Mother moved to a rental property in (omitted) New South Wales.  The Father confirmed that, at that time, the relationship with the Mother had deteriorated significantly.  The Father also said that he had no prior notice of the Mother’s intentions to move out.

3. The parties attended upon the Family Relationship Centre, (omitted), for dispute resolution.  Ultimately a parenting plan was formalised in June 2013.  A copy of that plan is annexed to the Father’s affidavit, filed 19^th February 2014.  That plan provided for the children to spend time with their Father overnight each Friday.  The plan was reviewed in September 2013 because of an overlap between the children’s sporting commitments on Saturday.  The Father said that, because of such clashes, his time with the children was reduced.

4. The Father contended that the Mother regularly did not comply with the parenting plan, and took the children out of school 2 days prior to the end of the school year without the Father’s permission.  The Father said that at the time, he and the Mother were making arrangements for a trip to (omitted) Queensland.  The Father also said that the earlier departure of the children meant that he could not travel with the children.

5. When the Father arrived at (omitted) Queensland a short time later, he said that he found his Wife and the children residing with the maternal Grandmother.  He advised that he has had long-standing animosity from the Mother’s family which, on this occasion, meant that he had quite limited time with the children over the Christmas period.

6. The Father said that the Mother and the children returned to (omitted) New South Wales on 25^th January this year, prior to the commencement of the school year.

7. On 6^th February, the Father said that during a conversation with his daughter W (the eldest of the children) he learnt of the Mother’s intention to take all the children to (omitted) Queensland the following day for a period of some 8 weeks or thereabouts.  That evening he asked the Mother of her intentions.  He said that no clarification was forthcoming, but he witnessed, he said, W being reprimanded for talking to her Father about the plans.  The Father said that the Mother denied any such plan to leave (omitted) New South Wales.

8. The Father also said that on 7^th February, during a telephone conversation with the Mother, she advised him that she was removing the children from (omitted) New South Wales and would be leaving for (omitted) Queensland that night.  The Father said that the Mother knew that he was scheduled to be away from (omitted) New South Wales for work at that time and therefore he could do nothing about the situation.  The Father also said that the Mother mentioned that she could be away for some 8 weeks or thereabouts and could return thereafter, and that there were some medical issues that needed addressing, including possible surgery.

9. The Father said that he offered to fly the Mother and the baby to (omitted) Queensland, but this was refused.  The Father also confirmed that he advised the Mother that the paternal Grandmother was available to assist him in the care of the children left in (omitted) New South Wales while the Mother went to (omitted) Queensland.  The Mother refused such options or alternative arrangements and left, the Father said, without his consent or authority.

10. The Father said that, via later text messages with the Mother he confirmed that he “disapproved” of the removal of the children from (omitted) New South Wales and that if they were not returned by 17^th February he would seek the assistance of the Court for this to occur.  The Father contended that in the same ‘text conversation’ the Mother agreed to return W and X to (omitted) New South Wales.

11. The Father further deposed that inquiries of the Principal of (omitted) School in (omitted) on 12^th February confirmed that the Mother had made inquiries of that school for permanent placements for W and X.  The school could not offer such placements but suggested other schools.  The maternal Grandmother works at this school, which led, the Father said, to the Principal declining to provide evidence of the conversations with the Mother.

12. The Father briefly outlined his capacity to care for the children if returned to (omitted) New South Wales, including the availability of his Mother to assist in the full-time care of the children.  He noted that, at the time of his original affidavit that he did not know the address or specific whereabouts of the children.  As at the date of the affidavit, the Father had not spoken with the Mother but only to the children.

The Mother’s Material

1. The Mother’s material was filed on 26^th February.  Among other orders sought were that the proceedings be transferred to the Brisbane Registry of the Court and that the Father pay the Mother’s costs of the proceedings.  In passing, I suggest that a costs application as an opening salvo in parenting matters (a) was unusual, and (b) inappropriate.

2. After outlining the history of the relationship, which included periods of separation and living on (omitted) Queensland, the Mother confirmed (para.5): “Since returning and attending my [medical] appointment and Mr Whiteside having instituted proceedings, I have decided that I would like to return to (omitted) Queensland with the children permanently now.”  Without more, this would appear to be an unqualified confirmation that (a) the Mother has relocated without the consent of the other parent, and (b) perhaps a contention that she only formed this definitive position after having moved to (omitted) Queensland.

3. At pars.11-23, the Mother outlined the range of not insignificant health issues, proposed courses of treatment, and where that treatment might occur.  She then moved to a discussion of alleged parenting difficulties and deficiencies of the Father, which (she said) included the Father’s ‘drinking and abusive behaviour’ towards the Mother.  A number of instances she gives are rather historical, and date from 2007, 2008 and 2009.  Contrary to the Father’s position, the Mother contended that the Father was often absent from the children’s lives.  She said that the Father’s drinking and difficult behaviour, and lack of involvement in the children’s lives, continued after separation.  Among other places, see pars.88-99.

4. The Mother contended that the Father knew and consented to the Mother and the children travelling to (omitted) Queensland pursuant to the Parenting Plan for the 2013/2014 school holiday period.  The Mother also said that the Father visited (omitted) Queensland during this time and, apart from time with the baby, spent time with the children.

5. There is no dispute that Y required medical treatment whilst in Queensland during the Christmas holidays in 2012/2013, and which included a period in hospital.  The Mother further questioned the Father’s involvement in the children’s lives, including during and after Y’s time in hospital.  The Mother contended that the Father has not been responsible for caring for the children by himself for more than two consecutive nights “and no more than three consecutive nights with [I assume this is intended to mean “without”] his Mother’s assistance.”

6. In pars.77-87, the Mother outlined the parenting arrangements since 7 February.  Among other things, the Mother contended (at para.81) that she had a conversation with the Father on 7^th February about her need to travel with the children to (omitted) Queensland the following day for a medical appointment.  She said that the Father did not object to this.  The Mother also said that prior to leaving (omitted) New South Wales she spoke with the children’s school to advise that the children would not be at school for the duration of the trip to (omitted) Queensland, and that she would keep the school informed.  I do not understand there to be any information before the Court amidst the ever-growing volume of material that indicates any communication between the Mother, in accordance with her affidavit, and the older children’s school since the Mother left (omitted) New South Wales.

7. Since arriving at (omitted) Queensland, the Mother confirmed that her Mother has been home-schooling the children.

8. At pars.100-114, the Mother outlined her “proposal”.  It began with a statement to the effect that it was always the intention of the parties to return to (omitted) Queensland to live.  The Mother confirmed (at para.100) that at the time of the trip to (omitted) Queensland in February 2014 “it was not front of mind that I wished to remain living on (omitted) Queensland with the children.”

9. Then at para.101. the Mother said: “… the family support that I have here and seeing how happy the children have been since we arrived and consider that now is the appropriate time for the children and I to relocate on a permanent basis to the (omitted) Queensland.”  The Mother then refers generally to possible future treatment and the support of her family.  Family support is stressed by the Mother in a number of places in her affidavit, including para.107(e).

10. It is not immediately necessary to go through the Mother’s responses to the Father’s affidavit.  However, what is of some moment is a copy of the Mother’s lawyer’s letter to the Father, dated 12^th February 2014, which is annexure W 6 to the Mother’s affidavit.  At para.2.2 of that letter, the lawyers relevantly state: “Whilst Ms Whiteside presently has no intention of remaining on the (omitted) Queensland with the children, she is not in a position to be able to travel back to (omitted) New South Wales with the children.  Further, she does not agree to the children being returned to (omitted) New South Wales without any proper arrangements being put in place to ensure that they are properly cared for.”

11. At para.2.8 of that letter, the lawyers relevantly said to the Father: “… We confirm that whilst Ms Whiteside is eager to ensure that arrangements are put in place for the children to spend time with you over the next few months, there does need to be certainty as to how those arrangements will unfold, in particular (a) whether the children are to spend time with you on the (omitted) Queensland or in (omitted) New South Wales, (b) when the children will be spending time with you …”

12. The Mother confirmed that she sought, on an interim and final basis, that she and the children reside on the (omitted) Queensland.

13. It is unnecessary to go through the other supporting affidavits in detail at this stage, except to note the following:

    (a)An affidavit filed by the Mother’s sister (Ms C) on 27^th February 2014, at para.7 stated: “During that conversation (on 10^th February) Ms Whiteside [the Mother] expressed to me that it was her intention to return to (omitted) New South Wales once she had received the necessary medical treatment on the (omitted) Queensland.”

    (b)An affidavit from the paternal Grandmother (Ms H), filed 6^th March 2014, in which she deposed to being available to assist the Father with the care of the children;

    (c)An affidavit, filed 6^th March, on behalf of the Father’s employer confirming that it supports the Father and will continue to do so;

    (d)The Father’s further affidavit, filed on 6^th March, confirmed that his employer had indicated that flexible work arrangements would be available to him if/when the children returned to (omitted) New South Wales.  The Father also confirmed that, while he initially gave consent for the Mother to travel to the (omitted) Queensland for medical treatment, he confirmed to the Mother that he did not consent to a relocation.

14. One final evidentiary matter needs to be noted.  On 31^st March, the Court sought, via email to the Mother’s lawyers, an update in relation to the Mother’s medical situation including her prognosis and expected recovery time.  The Court anticipated a letter along the lines of the helpful correspondence dated 26^th March from the Mother’s solicitors, which provided a neatly crafted account of recent medical interventions and summary of the Mother’s current health status.  It was because this letter did not detail any relevant information about the Mother’s prognosis that more information was sought.

15. Somewhat alarmingly, the Mother filed a further affidavit on 2^nd April, which runs to 76 pages – including annexures.  Unfortunately, the parties are described with the Mother as the Applicant and the Father is the Respondent.  This is clearly incorrect.  Attention to detail matters.

16. Among the annexures there is a single page letter, dated 1^st April, from a GP, Dr P, who the Mother describes as “our family doctor since 2012.”  Given the parties have been living in (omitted) New South Wales for some years, this is an unfortunate example of ‘special pleading’ which is necessarily self-serving.  However, the remaining 67 pages or thereabouts of the affidavit are copies of correspondence between the Father and the Mother’s lawyers.  On one view, none of this should be annexed because the correspondence could be taken to refer to interim settlement discussions about the Father seeking to spend time with the children.

17. Given that the Court only sought an update of medical information, it was also extremely presumptuous to include a voluminous update regarding parenting arrangements, which also included various further allegations about parenting.  To flood the Court, let alone a self-represented litigant, with such detailed material in the current circumstances, in my view, is unhelpful, imposes yet further strain on the Court’s capacity to deal with matters in a timely manner; it merely adds to the volume of material without necessarily aiding the Court’s resolution or determination amidst the quagmire of competing allegations and contested facts.

18. All of this said, and leaving to one side the prodigious consumption of paper and other resources (at whose expense is another matter for another day, perhaps), a further comment or two is apposite. 

19. In the Mother’s lawyer’s letter to the Father dated 25^th March 2014,(annexure W – 3) marked “private and confidential” – the utility of such a marking must be questioned when such documents are liberally made available to the Court – the Mother’s proposal for the Father spending time with the children is laid out.  The letter includes the following statements: “Given that the children have not been in your care for quite some time, Ms Whiteside also requires your assurance that you will facilitate the children contacting Ms Whiteside each night whilst they are in your care.  Ms Whiteside is willing to be flexible in relation to the days and times that the children spend with you.”

20. Respectfully, there is a certain rich if not black irony in one parent, who has unilaterally relocated (for reasons already noted) dictating the terms and conditions of the left behind parent’s time with the children and to base these conditions on the fact that the left behind parent has not spent time with the children recently.  Such an argument is rather circular, not to mention audaciously self-serving.  And to describe such pre-conditions as indicating “flexibility” might also be regarded as somewhat presumptuous if not almost disdainful and mordant. 

21. Similar comments might also apply to the Mother’s lawyers’ requirement that the Father sign an undertaking not to remove the children from the (omitted) Queensland (annexure W – 6).  I do not suggest that it is the Court’s view, but there is a certain chutzpah or general brazenness if not audacity about such a requirement in all of the circumstances.

22. While a number of other observations might properly be made in relation to the swathe of material in this onerous affidavit, it is sufficient to make but one more. 

23. Wasting no opportunity, the Mother’s solicitors wrote again to the Father on 1^st April (annexure W – 17).[3]  The letter was again marked “private & confidential” – for what that is worth.  The letter outlined certain matters that were discussed with the Father.  In terms from almost olden days in criminal matters, it could be viewed that the Father has been “verballed” by the Mother’s solicitor, whereby the Father is asked to comment on certain matters discussed with him.  I will not comment on the conversation referred to in the letter.  It is a matter for Mr Whiteside to advise the Court, in an appropriate way, if there is any relevant or material change to his position.

    [3] The Mother is not legally aided.  Her legal costs, it was confirmed, are being paid for by her family.

1. However, among other things noted in the letter is the effrontery felt by the solicitors about matters that the Father has allegedly put in correspondence with my Chambers.  I have not read that correspondence, yet the solicitors feel it is important to bring a copy of their letter to the Father to the attention of the Court, and to report that they are grieved by the Father corresponding with the Court in ways that is “simply scandalous and self-serving.”  In the circumstances, something about the colour black and pots and kettles comes to mind.

2. Finally, to state the obvious, these interim reasons would be considerably shorter, but for this barely helpful but not insignificant affidavit of the Mother.  The Court requested one, very discreet piece of information and got very much more than was sought.  One would hate to think how much the paper war has cost thus far.  When documents are filed they must read and considered: such things take time.  In no prejudicial way do I observe simply that when the litigious fire is stoked, there is less chance that it might either subside or be extinguished.

3. In relation to the brief medical evidence from Ms Whiteside's GP, I note the following. 

4. First, she has endeavoured to obtain a report from her treating specialists.  It will help immeasurably to have that information.  Secondly, without casting any doubt on the GP, I do not understand her to have been involved in the Mother’s most recent treatment, and therefore her comments must be considered as somewhat generalised, particularly in the absence of details from the treating specialists.  Thirdly, the Mother has clearly been living with the medical condition referred to by the GP for many years and, on her own evidence, away from a tertiary hospital.  While not doubting the GP’s comments, absent evidence from the treating specialists, they seem to be – to some degree – perhaps coloured by the Mother’s situation.  In my view, the Court must properly wait for detail from the specialists.  This is only to say that the GP’s general advice is just that, namely “general advice”, and just a start; more detailed evidence is needed.  I look forward to seeing it – hopefully in genuinely abbreviated form.

Submissions

1. Written submissions have been received from each of the parties as well as the ICL.

2. I pause here simply to note, if not beg practitioners (and not for the first time) to ensure that, like all documents filed with the Court, submissions should conform with the Rules of Court regarding (a) font size (which is relevant to readability), and (b) paragraph numbering (which is relevant to referencing).[4]  Only one set of submissions filed in the current matter complies with both requirements.

   [4] Generally, see Division 2.1 of the Federal Circuit Court Rules 2001.

The Father’s Submissions

1. The Father says that it is important for the children to have a meaningful relationship with both parents, and acknowledges that distance and logistics are major considerations here.  He says that if the children return to (omitted) New South Wales he will ensure that the children continue to have a meaningful relationship with their Mother. 

2. As a general observation, logistics may defeat the good intentions here, as they would for the Mother’s similar general position for the children’s relationship with the Father if they remain living in Queensland and the Father continues to reside in (omitted) New South Wales.

3. The Father denies he has any issues regarding alcohol, and similarly denies that there was abuse during the relationship.  He says further that there is no allegation that he was ever abusive to the children, and that there is, therefore, no issue of relevant risk if they are in his care.

4. Regarding relevant parts of the legislative pathway, summarily, the Father says that (a) the views of the children, such as they might be, are too young to be decisive, (b) he has a good relationship with all the children, (c) he has supported the Mother and the children financially, (d) he has been denied involvement in the children’s lives regarding living arrangements and the like because of the Mother’s unilateral action, (e) he is concerned about the impact on the children of the relocation, (f) the Father confirms that it is not desirable or ideal to separate the children, and that, in any event, any separation would only be on an interim basis, (g) the Mother’s proposal for the Father to spend time with the children each fortnight is impractical, (h) the Mother is, or is unlikely, to be able to care for the children while she is recuperating, (i) assistance from the Mother’s wider family should not take precedence over assistance from the Father’s family.

The Mother’s Submissions

1. For current purposes, it is sufficient to note the following matters by way of summary from the Mother’s submissions.

2. The position of the Mother is that (a) she has always been the children’s primary carer, (b) it would not be in the children’s best interests to separate any of them, (c) the circumstances of the case are such that it comes within Boland J’s observation in Morgan v Miles of “emergency” which would thereby take it out of the usual course of relocation being determined at a final hearing, (d) to separate the children from their Mother at this time would pose some concern for the children, particularly the older children because they would be worried about her, (e) the Father’s application shows some lack of insight into his capacity to care for the children and similarly about the needs of the children (the Mother acknowledges, somewhat in passing, that the Father recognises the importance of Z remaining with his Mother while he remains a baby), and (f) the Mother’s case for relocation, on a final basis, is strong.  The Mother also seeks that a final hearing be expedited.

The ICL’s Submissions

1. The ICL’s submissions proceed on the basis that (a) there has been a unilateral relocation, and (b) the Father may have consented to a short term stay or visit to the (omitted) Queensland, but not for a longer-term stay.

2. The ICL also noted that while the Mother sought to have relevant surgery closer to (omitted) New South Wales, it turned out that only hospitals in Melbourne, Sydney or the (omitted) Queensland could provide all the necessary treatment.

3. The ICL notes that in the event that the Mother does not return to (omitted) New South Wales, both parties are seeking orders that will result in quite limited face to face time between the children and the other parent.

4. The ICL noted that, whatever the level of contest over disputed facts (such as the level of the Father’s involvement in the children’s lives), she submitted that he has involved himself in their lives and has sought to maintain his role as their Father since separation.

5. The ICL submitted that the delicate balance here is how to maintain the Father’s meaningful relationship with the children, on the one hand, and the impact on the children of their removal from their Mother.  As she rightly says, given the Mother’s health issues and her location on the (omitted) Queensland, it is not possible to determine the matters other than by reference to an outcome that will have the least negative impact on the children.  Properly, she notes that there are many unknowns at the moment, in which case she urges the Court to take a cautious approach, and that, at the present time, any orders made may have to be re-visited in the not too distant future.  I agree.

6. In the short term, the ICL submits that the children should remain with their Mother until her recovery period has concluded.  It may be, as she says, that until there is further medical evidence, the duration of that recovery is unknown, and further submissions might be required in relation to the duration of the interim orders.  In the meantime, the Father should (a) speak with the children via Skype regularly, (b) spend time with them when-ever he is able to travel to the (omitted) Queensland, including every weekend and upon him providing 48 hours’ notice.

Legal Principle

1. The legislative pathway must be adhered to, and not in any formulaic way.  For current purposes, the following summary of principle by Brown J in Mazorskiv Albright in relation to Part VII of the Family Law Act1975, (“the Act”) is sufficient (noting, of course, that there have been significant changes to the primary and additional considerations in relation to “family violence”). Respectfully, and cognisant of the ‘family violence’ changes to the ‘pathway’, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c).[5]  At [3] – [6] her Honour said:

   [3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

   [4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

   [5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

   [6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

   [5] (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.

2. Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[6]

   [6] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.

   [20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions.  At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach.  The paragraph continues:

   The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.

   [21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division.  The objects use the words “meaningful involvement”.

   [22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:

   The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody.  The presumption relates solely to the decision making responsibilities of both parents.  New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.

   [23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):

   [196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship.  This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents.  This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time.  The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders.  This is set out in s 60CA by item 9.

   …

   [199] Section 65DAA (2) – (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement.  It is intended to ensure a focus both on the amount of time and the type of time.  It would include both day time contact and night time contact.  It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child.  It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.

   [24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”.  A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”.  These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989.  It defines “meaning” (in generalised use) as “significance”.  The examples provided take the matter no further.

   [25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”.  Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.  I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive [sic] one.  Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

3. Also of particular significance in the current matter are the detailed comments of Boland J (sitting as the Full Court) in Morgan v Miles.[7]  I note the following from her Honour’s judgment.

   [7] Morgan v Miles (2008) 38 Fam LR 275. Among more recent Full Court decisions regarding relocation, I note that in Cales v Cales (2010) 251 FLR 454; (2011) 44 Fam LR 376 (May, Boland & Cronin JJ), at [139], the Court noted and confirmed a range of other Full Court decisions which expressly and emphatically stated that the older authority of A v A: Relocation Approach (2000) FLC 93-035 no longer reflects the principles to be applied in a relocation case and should not be followed. I mention this in particular because the Father’s solicitors refer to and use this case of A v A as a relevant point of reference.

4. First, at [55], Boland J said (emphasis added):

   There is nothing in the legislation which provides that a parent who has existing order which provides that the child spends fifty per cent or more of his or her time with that parent has a unilateral right to move the child, (on the basis that this is in the child’s best interests). Whilst such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation. It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.

5. Then, [72] – [78], her Honour outlined some of the changes that had been brought into effect by the 2006 amendments to the Act. She said (internal references omitted; emphasis added):

   72. There can be no dispute that in determining a case where one party, which research indicates is invariably the mother… wishes to relocate, a court is making a parenting order generally about who the child will live with or with whom the child shall spend time. The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.

   73. It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole, consideration.

   74. The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order.  The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.

   75. It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.

   76. If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally.

   77. The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.

   78. Section 60I requires parents, if no exclusionary factors such as abuse, family violence or urgency apply, whether there is an order under s 61C, or s 61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner.

1. Then at [80] – [81], the Court observed:

   80. It follows from my exposition of the legislation, that earlier core principles:

   - that the child’s best interests remain the paramount but not sole consideration;

   - that a parent wishing to move does not need to demonstrate “compelling” reasons;

   - that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and

   - the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   81. What the legislation now requires is:

   - consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   - if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.

2. At [82], Boland J confirmed that the legislative requirements of Part VII did not distinguish between final and interim proceedings, and therefore, the same principles should be applied to both.  And at [84], her Honour said: “The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing….”

3. Significantly, at [88], Boland J commented (emphasis added):

   It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.

4. Finally, at [91] and [92], the Court said (emphasis added):

   … it is not distance per se which should be the determinative criteria.  In many cases what is relevant is the consequence of the move or proposed move.  The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship.  Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.

   92. Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves.  Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.

5. It is time to move to a consideration of the facts – contested as they are – and the application of relevant principle.

Consideration & Disposition

1. I accept that the medical circumstances of the Mother are such that her options for medical treatment were limited to Sydney, Melbourne and the (omitted) Queensland.  To state the obvious, all three destinations posed/pose very significant logistical issues for the parenting of the four children involved.  While understandable, the (omitted) Queensland option perhaps posed, and continues to pose, the greatest logistical issues for all, but most particularly for the Father.

2. The immediate consequence of the move, whatever the contested nature and parameters of it, has made the concern expressed by Boland J in Morgan v Miles at [74] – [77] in relation to the problems thereby created for the “left behind parent” particularly acute. There was clearly, on the Mother’s own evidence, a unilateral move, albeit that it was (she says) only formed as a final move upon having left (omitted) New South Wales. There was also clearly no compliance with s.65DAC, as noted by Boland J in the passages to which I have referred. The earlier parenting plan, in my view, does not satisfy the requirements of s.65DAC.

3. I accept the submission on behalf of the Mother that an expedited hearing will be advantageous for everyone.  The Court will do what it can to ensure that this occurs.  Not insignificant difficulties also apply to securing an appropriate family report. 

4. The Mother’s actions, as understandable as they are from a medical and support perspective, have, in large measure, compounded the problems (a) for the children spending time with their Father, (b) for the Father (and the Mother and the children) attending on a family consultant, and (c) for the Court making appropriate orders for time with arrangements, organising a report, and allocating any relevant trial.

5. All of this said, certainly from a medical perspective, the present matter can, in my view, quite readily come within Boland J’s exception to interim relocation hearings in ‘cases of emergency’.  However, it is too early, in my view, to make any formal determination about, for example, if the Mother could or should have (a) had her surgery in Sydney (in part because it is much closer to (omitted) New South Wales than is the (omitted)) Queensland and (b) left the children with the Father (with the assistance of his Mother).  All such matters are best left for consideration at a final hearing.

6. In my view, the principles set out by Boland J in Morgan v Miles at [79] – [81] must be followed here – to the degree that they can. Having already set out [80] and [81] from her Honour’s judgment, I record the following from [79], thus:

   In considering whether the child should live with the parent who proposes to relocate a court:

   • Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   • Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   • Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   • If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   • In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   • When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   • Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.  Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   - that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   - that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   - that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   - the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   • Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.

7. On the facts here, it seems reasonably clear that there was, or has, never been any attempt by the parents to resolve the dispute.  It would appear that the Mother’s actions made such a course impossible.  Further, the Mother’s earlier statements, and those of her sister to the Father about her return to (omitted) New South Wales after her recuperation from surgery have not allayed or ameliorated matters.  In fact, they may have only made the resolution of the dispute much more difficult.

8. By reference to the legislative pathway, the following considerations – brief as they are - seem to me relevant to making orders that are, on an interim basis, in the children’s best interests.  I note again, and accept the thrust of the ICL’s submissions which I paraphrase to the effect that no orders in the matter are or can be completely optimal for all, including the children; all options before the Court have negative dimensions for all, including the children.  The Court must ultimately choose the least worst or negative of those options when determining, on the conflicted evidence and immense logistical difficulties now before the parties, the orders that are in the children’s best interests.  In my view, the main considerations from the legislative pathway are as follows:[8]

   [8] For the record, there are no relevant views of the children for the purposes of s.60CC(3)(a). Likewise, the young ages of the children might also be relevant to s.60CC(3)(g).

   (a)The Mother has been the children’s primary carer.  To the degree that her recovery allows, that situation will not change, save that she confirms that she requires (and perhaps for some time) assistance from her family (it would appear that some of the Father’s family also lives in or near Brisbane, and the Mother says that they will be able to spend time with the children without undue difficulty);

   (b)I accept that the Father has been involved in the lives of the children, and he seeks to remain involved with them.  It is not appropriate in the current circumstances to make any finding about the nature or degree of that involvement;[9]

   (c)The geographical and logistical issues now involved in the matter make regular time between the Father and the children essentially impossible.  This could have very severe consequences for the children’s relationship with their Father;[10]

   (d)The Mother’s decision to remain permanently on the (omitted) Queensland is, on her own evidence, quite late breaking.  Indeed, her lawyers and her sister confirmed in February that the Mother had no intention to remain permanently on the (omitted) Queensland, and would remain there only until her medical matters were resolved, following which the Mother would return to (omitted) New South Wales. These statements in writing to the Father have proved to be representations that are now untrue. The current circumstances are untenable for all. In my view, they clearly place the Father in an utterly fraught and, respectfully, unfair position – certainly on an interim basis.  In every respect, the Mother having moved, the result is that all travelling for the foreseeable future falls at the feet of the Father;

   (e)Without attributing fault to anyone, it might even be said that the factual circumstances have conspired to place a gun at the head of the Court (and the Father also) regarding the relocation application;

   (f)Although it may be somewhat academic at the moment, there is nothing, in my view, to warrant the rebutting of the presumption of equal shared parental responsibility under s.61DA.  That order having been made, the issues of practicability make any order under s.65DAA, whether shared care or substantial and significant utterly impractical or impossible;[11]

   (g)S.60CC(3)(d) is of particular concern here, which refers to the likely effect on the child of separation from either of the parents, or any other child. As has rightly been pointed out in submissions, there are proper concerns in relation to (i) the separation of the children from each other, (ii) the separation of the children from the Mother, and (iii) the separation of the children from the Father;

   (h)The practical difficulties and expense I have already noted or at least alluded to.  The facts speak for themselves given the geographical distance between the parties;

   (i)Questions or issues of the capacity of the parents, and the attitude to the children and to the responsibilities of parenthood, must await a final hearing, particularly where there are competing claims made by each of the parents.

   [9] The matters set out her in sub-paragraphs (a) and (b) are intended to consider, to the degree possible, the matters encompassed by s.60CC(3)(b) – (ca). They might also be relevant to sub-paragraphs (f) & (i).

   [10] This consideration clearly relates to s.60CC(3)(d) & (e).

   [11] Here, the comments of the High Court in MRR v GR (2010) 240 CLR 461 at [13] and [15] are especially relevant, not least the Court’s emphasis on the responsibility of the trial court to have regard to “the reality of the situation” and to make a “practical assessment” regarding the requirements of s.65DAA and their application to the facts.

9. Doing the best the Court can in the somewhat extreme circumstances that apply at the moment, and (i) accepting that the paramount consideration in s.60CA must remain directly in focus, but also that (ii) the children’s best interests are not the sole consideration, the following orders seem to me the most appropriate, albeit on a very interim basis, and with the likelihood of further interim arrangements in the not too distant future as foreshadowed by the ICL, and pending a final hearing, when-ever that might be:

   (a)The parents are to have equal shared parental responsibility for all of the children;

   (b)The children Z and Y are to live with the Mother in Queensland.  The Father may speak with and or spend time with Z and Y by prior agreement with the Mother (upon giving 48 hours’ notice) when he is able to be in Queensland, and speak with them regularly (to the degree possible) by Skype as agreed;

   (c)Absent any other agreement in writing between the parties, until the end of the NSW first term school holidays, the children W and X are to live with the Mother.  Thereafter, as from the last weekend of the NSW first term school holidays, they are to reside with their Father and resume their schooling in (omitted) New South Wales and communicate with their Mother via Skype and/or telephone at least each alternate day;

   (d)Pursuant to s.62G, a report be prepared in Brisbane on a date and time to be arranged;

   (e)The matter be listed for an expedited hearing on a date and venue to be advised;

   (f)The matter be adjourned to a date and time to be advised.[12]

   [12] Although not a formal order, I record and recall from earlier in these reasons the request to the Mother’s solicitor that a report or update be provided by the Mother’s treating specialists regarding, in particular, the likely duration of the Mother’s recovery.  That report should be as brief as possible in the circumstances.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date: 28 April 2014