Wilkins and Coates

FAMILY COURT OF AUSTRALIA

WILKINS & COATES

[2018] FamCA 1098

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where mother seeks to relocate with the child – Where father opposes relocation – Where the mother’s emotional and financial circumstances will improve if relocation is permitted – Whether mother’s parenting capacity will improve if relocation permitted – Whether the relationship between the father and the child will deteriorate if relocation is permitted – Findings that relocation is in the child’s best interest – Relocation permitted – Where order for equal shared parental responsibility is in the child’s best interest – Where orders are made for the child to live with the mother and spend significant and substantial time with the father if he is able to do so.

Family Law Act 1975 (Cth) ss 60B, 60CC

A v A: Relocation Approach (2000) FLC 93-035

APPLICANT:

Ms Wilkins

RESPONDENT:

Mr Coates

FILE NUMBER:

MLC

5021

2017

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

30 & 31 October 2018, 1 & 2 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Swann

SOLICITOR FOR THE APPLICANT:

RNG Lawyers, Lilydale

COUNSEL FOR THE RESPONDENT:

Mr Sansom SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

BY DETERMINATION all previous parenting orders made in respect of X born … 2014 (‘the child’) shall be and are discharged from the date of this order.
BY CONSENT Ms Wilkins (‘the mother’) and Mr Coates (‘the father’) shall have equal shared parental responsibility for, and shall make joint decisions about, major long terms issues affecting the child, including but not limited to decisions about the child’s education, religious and cultural upbringing, health and extra-curricular and sporting activities.

BY DETERMINATION

The child shall primarily live with the mother.
The mother is permitted to relocate the residence of the child from Melbourne Australia to City B New Zealand on or after 31 January 2019.
The child shall spend time with the father as follows:-
5.1For the period December 2018 up to 21 December 2018:-
5.1.1In Week 1, from the conclusion of school on Friday, but in the event that the child is not at school then from 9.00am until the commencement of school on Monday, but if the child is not at school then until 6.00pm;
5.1.2In Week 2, from the conclusion of school on Wednesday, but in the event that the child is not at school then from 3.00pm until the commencement of school on Friday, but if the child is not at school then until 9.00am; and
5.1.3Such weeks to be consistent in terms of the alternate weekend schedule presently in place;
5.2From the commencement of school term 2019 and onwards:-
5.2.1for one block period every 2 months of 4 days and 3 nights, commencing Friday morning and concluding Monday afternoon with the father to notify the mother no less than 14 days in advance of changeover times, to coincide with his airline flight times;
5.2.2For 3 block periods every year when the mother shall take the child to Sydney to spend time with the father for 5 days and 4 nights, commencing Friday morning at a time no later than 10:00am and concluding Tuesday afternoon at a time no later than 2:00pm.
5.2.3The mother shall prepare and forward to the father a schedule before 1 February in every year of the dates she proposes for the time to occur and the father shall within 72 hours of receiving the mother’s schedule respond with any changes that he requests.
5.2.4The time that the father spends with the child pursuant to orders 5.2 be suspended during school holidays.
5.3The father spend the following time with the child during the school holidays at the conclusion of Terms 1, 2 and 3 as follows:-
5.3.1In 2019, for a block period of 5 days and 4 nights at the conclusion of Term 1 as agreed between the parties and, failing agreement, from 9.00am commencing on the first Saturday following the last day of the school term for the child and concluding at 6.00pm on the following Wednesday;
5.3.2In 2019, for a block period of 6 days and 5 nights at the conclusion of Terms 2 and 3 as agreed between the parties and, failing agreement, from 9.00am commencing on the first Saturday following the last day of the school term for the child and concluding at 6.00pm on the following Thursday; and
5.3.3From 2020, for one half of the school holidays at the conclusion of Terms 1, 2 and 3 as agreed between the parties and, failing agreement, the first half of the school holidays.
5.4The child spend time with the father during Christmas and the summer school holidays at the conclusion of Term 4 as follows:-
5.4.1During 2018/2019:-
(a)From 9.00am on 21 December 2018 until 3.00pm on 25 December 2018;
(b)From 9.00am on Sunday 13 January 2019 until 5.30pm Thursday 17 January 2019; and
(c)From 9.00am on Thursday 24 January 2019 until 5.30pm on Tuesday 28 January 2019;
5.4.2In 2019/2020 from:-
(a)9:00am on 16 December 2019 to 5.30pm on 22 December 2019;
(b)9:00am on 6 January 2020 to 5:30pm on 12 January 2020; and
(c)9:00am on 21 January 2020 to 5:30pm on 27 January 2020;
5.4.3Commencing in 2020/2021 for one-half of every period of the summer school holidays, including Christmas Day being the first half of the school holidays at the conclusion of Term 4 in 2020 and in each alternate year thereafter and for the second half of the school holidays at the conclusion of Term 4 in 2021 and in each alternate year thereafter.
5.4.4For the purposes of calculating the school holiday period:-
(a)The first day of the school holiday period commences at 9:00am on the day following the last day of the school term for the child;
(b)The last day of the school holiday period is 5:00pm on the day before the commencement of the school term for the child. Except the Christmas/New Year Holiday then the last day shall be two full days before school commences;
(c)The mid-point of the school holiday period is 1:00pm on the day that falls in the middle of the school holiday period;
(d)Pupil free days falling at the end or start of each school term are included in the mid-term school holiday period; and
(e)The parties shall use the term dates published on the website of C School, Suburb D.
5.5If the child is spending time with the father in New Zealand, then changeovers shall occur at the mother’s residence.
5.6If the child is travelling to Sydney to spend time with the father, then changeovers shall occur at Sydney Airport when the mother travels with the child to Sydney, or at City B Airport when the father travels with the child to Sydney.
Unless otherwise agreed between the parties the child shall live with the mother at all other times.
Either party is permitted to take the child overseas for holidays and in relation thereto:-
7.1Unless otherwise agreed between the parties, the occasions on which the parties take the child overseas be at coinciding times that the child is in each parties' respective care pursuant to these orders;
7.2Each party will give the other party not less than 28 days written notice of the intention to travel overseas;
7.3Not less than one week before the departure date, the travelling party will furnish to the other an accurate itinerary to include the departure and return dates, the telephone number where the child can be contacted whilst away and the address of each place the child will be staying during the trip;
7.4The travelling party will facilitate the other parent having reasonable telephone communication with the child whilst the child is away, of not less than two telephone calls per week at times nominated by the other party;
7.5Each parent shall promptly do all things and sign all documents reasonably necessary including signing any consent letter which is required for travel outside of the Commonwealth of Australia or New Zealand within 5 days of the travelling parent requesting that consent letter or document be signed by the non-travelling parent;
7.6The parties shall do all things and shall sign all documents necessary to ensure that, at all times, the child has a valid Australian passport and a valid New Zealand passport and the parties will share equally the costs of all renewal applications for the child's passports; and
7.7The mother shall retain the child’s passports and provide the child’s passports to the father to facilitate overseas travel in accordance with these orders and the father return the passports to the mother at the next changeover of the child.
The parties each facilitate the child communicating with the other party by telephone and/or FaceTime when he is in the care of the other parent, including but not limited to twice per week.
The parties shall keep each other informed of their residential address and mobile telephone numbers and will notify the other party of any changes in those details within 2 days of any such change.
The parties shall notify each other as soon as practicable in the event of any serious illness or injury that requires medical intervention by a doctor or hospital concerning the child whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any such authority and direction necessary to enable the other party to obtain all necessary information concerning the child from such medical practitioner, health service provider or institution.
Both parties are permitted to liaise directly with the child's school and sporting bodies to obtain any necessary information about the child's progress and both parties will do all things necessary to facilitate this order.
Each parent is to give the other parent as much advance notice as practicable of any appointment for the child to attend upon a specialist medical practitioner, such that the other parent may have an opportunity to attend that appointment.
Both parties may attend any sporting, school, extra-curricular or special events that the child participates in regardless of which parent's care they are in at that time.
Neither party may move the child’s primary place of residence from the greater City B area without the agreement of both parents or an order of a court exercising appropriate jurisdiction.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications be and are dismissed other than costs, and any costs applications are to be dealt with in accordance with the Family Law Rules 2004 (Cth).
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same at the end of the appeal period.

IT IS NOTED

The mother has arranged an overseas holiday with the child, departing on 25 December 2018 and returning on 11 January 2019.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS FURTHER NOTED that publication of this judgment by this Court under the pseudonym Wilkins & Coates has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5021 of 2017

Ms Wilkins

Applicant

And

Mr Coates

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The child X (‘the child’) will soon celebrate his fourth birthday. He is the much loved son of Ms Wilkins (‘the mother’) and Mr Coates (‘the father’). These are decent parents whose relationship broke down on 6 June 2015 when the child was aged about seven months.
The mother is a New Zealand citizen who has lived in Australia for many years. She was based in Melbourne and, but for a short period of time in Sydney in 2015, she has lived in Melbourne with the child since separation.
Most of the mother’s family and friends reside in New Zealand including her best friend, her mother and her father. As a consequence her parenting of the child has been made difficult as a consequence of the paucity of available help on short notice.
The father undertook employment in Sydney in early 2015 and has continued to work as a consultant on a significant project since that time. The father’s family are based in Sydney. Both the father’s and mother’s families are close and devoted families, all of whom wish the best for their son, daughter or family member, and all of whom wish to have a continuing and ongoing relationship with the child.
I have determined that in late 2015 the mother first raised with the father that she wished to return and live in the City B area close to her family and friends. The father disputed this fact and said this was raised with him for the first time in August 2016.
In June 2018 the father took out a lease on a property in Melbourne and asserts that he has commenced living in Melbourne since that time.

THE ISSUES

The real issue in this matter is whether the mother be permitted to relocate the residence of the child permanently to New Zealand, and that decision having been made, one way or the other, what time and what communication the child should have with the father as he approaches his first year in primary school in 2020.
The parties are in agreement that there ought to be an order for equal shared parental responsibility and I am satisfied in all of the circumstances of this case that that should occur.

BACKGROUND

The mother is aged 43 and she was employed as consultant in Melbourne, but that employment has now ended. The mother had an income of about $300,000 per year. The mother is in good health having recovered from a medical condition, which was diagnosed in September 2015. I have had regard to her financial statement filed 26 July 2018 about which she was not challenged in cross-examination.
The father is also aged 43 and he is currently a consultant. He is working on a project in Sydney and has been involved in that project since early 2015. That project is not likely to be completed until June 2020. The father has recently signed a further contract.
The father was working out of the Sydney office, but has of recent times commenced working out of a Melbourne office. However, he will need to spend some days per week or fortnight in Sydney on a face to face basis.
The father asserts his average weekly income is $7,958 which is about $413,800 per year. He has significant assets and was not seriously challenged in relation to his income except in regard to the amount of his earnings. The father gave evidence that he works effectively a nine day fortnight through his consulting company and he is not paid on the days that he does not work. The father gave evidence that he takes a week long holiday per year.
It is not in issue that the father works long hours and at some stage, at least early in the contract, he was working up to twelve hours per day. The father asserts that the project is now in a ‘mature phase’ and he is able to work less intense hours.
The father is in good health, although he suffers from mild left hemiparesis. This condition does not restrict him in daily activities or restrict him in any way in terms of care of the child.
The parties met in Melbourne in early 2014 and by March 2014 they had commenced a relationship. There is an issue as to whether they commenced cohabitation in March or May that year. However, that is not a matter about which I need to make a determination.
The parties became engaged in September 2014 and the child was born in the same year.
There was an issue between the parties as to whether the mother had agreed to live in Sydney for twelve months after the child was born and when that agreement took place. There is no doubt that there was some form of an agreement by early 2015 to at least trial a relocation of the parties to Sydney.
The father commenced working in his current project in April 2015. The parties separated on a final basis on 6 June 2015; the mother returned to live in her house in Melbourne and the father remained living in his apartment in Sydney.
The father spent regular time with the child in Melbourne however, there were disputes between the parties in relation to when overnight time and when that should commence.
For the first twelve months or so following separation the father would spend time with the child each alternate weekend, and there was no overnight time.
In September 2015, when the child was only nine months old, the mother was diagnosed with a medical condition. In October 2015 the mother was admitted to hospital for urgent surgery. In her trial affidavit the mother says and I accept:-
65. ... At the same time it was recommended that I have my tonsils removed and I undergo corrective surgery on my nose as I had been suffering from repeated throat and sinus infections and illness, in part as a result of being rundown.
66. Whilst I was in hospital my mother came from New Zealand to care for [the child] and to assist me while I recovered. She brought [the child] to see me each day in hospital and otherwise was his sole carer. [The father] and I had met in a park some time before my operation and I had told him about my medical situation, the treatment I required and the need for help from my mother whilst I was in hospital and during my convalescence. Later when I was in hospital after the arrangements had been made for my mother to care for [the child], [the father] demanded that as [the child’s] father, he should take [the child] with him, causing me some considerable distress in my weakened state. During this time [the father] did not offer to spend more time in Melbourne to assist us.
The mother has at all times been the primary carer of the child. She took maternity leave until about March 2016. The mother returned to part-time work and the child initially attended child care three days per week but now attends four days per week.
The parties attended mediation sessions in March, May, June and August 2016. They reached agreement in relation to parenting of the child and when overnight time would commence. They reached an agreement that they would share parental responsibility, share information and that the child would live with the mother. The child would spend time with the father on alternate weekends from Saturday morning until 5.30 pm Sunday.
They also agreed to some overseas travel with the child. This agreement was entered into in April 2017. The father provides voluntary contribution to the child in so far as child support of $500 per week. In addition, he contributes by way of reimbursement of child care fees.
In evidence the father had complained that the mother increased the child’s days at day care from three to four days per week in January 2017. This was of little substance. The substantive issue was the communication between the parties.
After some consideration and thought the mother decided that she would like to return to live in City B. This occurred in 2015. In 2017 she commenced these proceedings.

On 10 August 2017 orders were made that the child live with the mother and spend time with the father on alternate weekends, the details of which orders I have had regard to.
A family report was ordered in August 2017 and the interviews took place in November 2017. The report was issued on 28 December 2017 and is in evidence before me.
The father asserts that he has now relocated and lives in Melbourne.
Any statement of fact in these reasons are to be regarded as a finding of fact unless the contrary is clear from the context.

EVIDENCE

Before the Court was an affidavit of Ms E (‘the family consultant’) who prepared a report dated 28 December 2017.
In that report she made the following recommendations:-
166.[The child] is not permitted to relocate to New Zealand with [the mother] and he remains living in Melbourne with [the mother].
167.[The father] should relocate to live permanently in Melbourne as soon as practicable.
168.When [the father] relocates to Melbourne to live nearby to [the mother] and until [the child] reaches 8 years of age, [the child] should spent at least five nights in a fortnight with [the father]. An arrangement such as alternate weekends between Friday and Monday and alternate Wednesday to Friday along with an alternate Wednesday evening would be appropriate. Holidays and then school holidays would be gradually extended to half with each parent.
169.When [the child] turns 8 years of age, the possibility of equal shared care is considered, but only in light of [the child’s development], his maturity and the relationship with both parents at the time.
170.Communication with the non-resident parent should be as [the child] chooses and at least once each time period.
171.[The mother] and [the father] attend joint parenting counselling to strengthen parenting communication.

The mother

The mother relied upon the following documents:-
(a)her case outline filed 22 October 2018;[1]
(b)an amended Initiating Application filed 26 July 2018;
(c)her trial affidavit filed 26 July 2018 and her affidavit in reply filed September 2018;
(d)her financial statement filed 25 July 2018;
(e)an affidavit of the child’s maternal grandmother, Ms F Wilkins, filed 26 July 2018;
(f)an affidavit of the child’s maternal grandfather, Mr G Wilkins, filed 26 July 2018; and
(g)an affidavit of the mother’s friend, Mr H, filed 26 July 2018.
[1] Exhibit E1.
Unsurprisingly there were a number of Exhibits tendered including:-
Exhibit E3:Minute of Order agreed between the parties (with alternatives included);
Exhibit E4:Exhibits to supplementary affidavit of mother;
Exhibit E5:Spreadsheet regarding the average cost of travel;
Exhibit E6:Spreadsheet by the mother as to the father’s travel from Sydney to Melbourne;
Exhibit E7:A schedule of the New Zealand school holiday periods 2018/2019;
Exhibit E8:Email dated 19 April 2018;
Exhibit E9:Email chain between the mother and father;
Exhibit E10:   Text messages between the mother and father dated 28 April 2016;
Exhibit E11:   Text messages between the mother and father about [P] Street dated 24 September 2016;
Exhibit E12:   Annexure to father’s affidavit;
Exhibit E13:   Text messages between mother and father dated June 2017;
Exhibit E14:   Email dated 29 June 2017 from the mother to father;
Exhibit E15:   Qantas record of father’s flights;
Exhibit E16:   Email correspondence between the mother and father regarding the child’s vaccinations from July to October 2017;
Exhibit E17:   Email correspondence between the mother and father in relation to the dispute about treatment of the child’s constipation from March 2018;
Exhibit E18:   Photographs of the child;
Exhibit E19:   Text and email communications;
Exhibit E2:2016 photograph of the mother;
Exhibit E21:   Text March 2018; and
Exhibit E22:   Text messages exchanged between the mother and father after the child was dropped off after visits.

THE MOTHER

The mother gave oral evidence in terms of her affidavits and financial circumstances referred to earlier.
She provided oral evidence that her work ended on 30 September 2018 and that she was not offered more work at the end of that contract. She gave evidence about positive job opportunities in City B. I am satisfied on that evidence that she is likely to find work in that city.
The mother provided evidence of the estimated costs of the father travelling to New Zealand[2] and provided an estimate of those costs.
[2] Exhibit E5.
The mother asserts, and I accept, that as to the circumstances of the father travelling to and from Melbourne and staying at the J Hotel the cost of travelling to New Zealand rather than to Melbourne would be comparable.
I also accept her estimate as to the cost of the father travelling to and from Melbourne as set out in Exhibit E6.
In cross-examination the mother acknowledged that the important people in the child’s life are the father and the mother. The mother said that she hoped that would remain the case. The child has a good relationship with the father. I accept the mother’s evidence that she will, as she has in the past, promote the relationship with the father.
The mother was not critical of the father in terms of him deciding to live in Sydney from early 2015, but expressed the impact of that upon her as she met the needs of the child. She said, and I accept, that he did not help her at times when she needed help, particularly on short notice. I am satisfied that the father may have been able to help but prioritised his work and other activities. I accept the mother was legitimately critical of him.
In cross-examination there was some criticism of the mother in relation to when she told the father that she was planning to move to New Zealand. There can be hardly any criticism of the mother in this respect. She did tell the father. She did not endeavour to relocate without an order of the Court. She endeavoured to negotiate with the father and when this failed she came to the Court.
There was some criticism of the mother in not telling the father that she planned to go to New Zealand for Christmas 2017. In her trial affidavit the mother said
72. [The father] has asserted in previous Affidavit material that I made arrangements for [the child] to travel to New Zealand for Christmas 2017 without [the father]’s knowledge and consent. This is not true.
73.The circumstances were that [the father] and I had agreed in the parenting plan signed in April 2017 that [the child] would spend Christmas Eve 2017 with [the father], and Christmas Day 2017 with me.
74.[The father] and I exchanged a number of emails in late-May 2017 about this issue and the options. We were both still in agreement about the Christmas Eve/Christmas Day arrangements and I went ahead and made some arrangements based on our agreement. At the time I did not have the office closure dates for the holiday period so could not confirm when I would depart Melbourne to bring [the child] to Sydney. The office closure dates were not communicated to me until September 2017.
75.[The father] made an Application to this Honourable Court on 26 June 2017 in which he sought to change the 2017 Christmas parenting arrangements from those we had agreed to in the parenting plan.
76.[The father] filed a supporting Affidavit in which he falsely claimed I had unilaterally made the arrangements and that I was otherwise not “open” and “frank” with him and “disingenuous” about my dealings and discussions with him about the 2017 Christmas arrangements. I say these assertions were not true.
77.At Court on 10 August 2017 agreement was reached and orders were made by consent in line with the original agreement in the parenting plan. Namely [the child] would spend the period leading up to Christmas, including Christmas Eve, with [the father], and he would be with me from 8.00am Christmas Day 2017 to enable us to go home to New Zealand to spend Christmas with my family.
I am satisfied that the mother was not disingenuous about this and believed she had informed the father well in advance and the criticism arising from the May 2017 emails was unnecessary.
I have carefully read the mother’s affidavit and attentively listened to her cross-examination. I am satisfied that the mother has struggled emotionally without the support of family and friends. This is despite being supported by her family and friends on a regular basis when they travelled to Australia for this purpose.
The mother gave evidence as to why she wished to return to live in New Zealand. This is set out in paragraphs 97 to 117 of her trial affidavit. I accept the mother has retained her New Zealand citizenship and has retained her deep ties to that country. Her closest friends and family are in that country.
I accept the evidence of the mother’s friend, Ms H. I also accept that she will provide significant support for the mother.
The contact between the mother and her friend Ms H has been strong and Ms H, who has her own family, has been strongly supportive of the mother.
The mother’s parents live about four or five hours by car, or thirty five minutes by plane, from where the mother proposes to live. I am satisfied that the maternal grandparents have provided support for the mother and that they will provide a greater level of support for the mother if she is permitted to return to New Zealand.
As I have said earlier, I am satisfied that the mother is likely to find regular well paid work in New Zealand and she has made significant enquiries in that regard.
The mother has significant assets and will be able to buy a home close to the airport and close to where she works. The mother says in her trial affidavit the following:-
116. I have found being the primary care giver to a young child in a city where I have no family or close support network around me, whilst performing a demanding and intense job, very challenging. It will greatly improve my happiness and emotional wellbeing if I am able to parent [the child] in [City B] where I have access to an extensive family and friendship network. This in turn will have significant flow on effects for [the child’s] wellbeing and happiness.
117. In short, if I were permitted to relocate with [the child] to [City B] I expect to be a happier, healthier, better supported and (sic) more fulfilled parent to him.
I accept the mother’s evidence in relation to those particular provisions and broadly in respect of her reasons for wanting to return to New Zealand.
I accept the mother’s evidence in relation to housing, education, supervision and financial options.
I find that the mother will support and promote the relationship between the child and the father, as she has for the last three and a half years, and will ensure that the child has a meaningful relationship with the father. It is significant, and to the mother’s credit, that the child has such a close relationship with the father and his broader family.
There were criticisms of the mother, however, I am satisfied that her communication is generally good and very strong it is certainly well above that which is often seen in the Family Court. The mother has offered, and I accept, that she will bring the child to Australia at least three times a year for blocks of four days. I accept the mother’s evidence in relation to the likely effect of relocation to City B on the child.
The father would be likely to spend more time with the child if the child remained in Melbourne than if the child lives in City B. I generally accept the mother’s evidence as to the practical consequences of the relocation.
The father’s close ties are with Sydney. That is where his parents and his close family live. He has worked primarily in Sydney and it is more likely that when the current project ends he will find work in Sydney more so than in Melbourne.
His evidence was that the Melbourne market was ‘soft’.
If the father was prepared to relocate to Melbourne, as he asserts, to be closer to the child, there is no reason why the father could not relocate to City B. The father has made no enquiries about employment in City B however he conceded in cross-examination that it is possible that he would be able to obtain such employment. There are no Visa requirements which would prevent him from doing so.
I have noted and reflected on the mother’s proposals if she was not permitted to relocate.
There was conflict between the parties as to whether support was offered to the mother or whether it was not offered. I am satisfied that the mother felt isolated. I am satisfied that the mother has strongly supported the father in his relationship with the child.
I accept the mother’s evidence that she has changed her schedule to meet the father’s commitments. Further, I accept the mother’s oral evidence that she would be less stressed and be a better mother if she lived in New Zealand and she would be happier as she is not particularly happy at present
As the primary carer, there is a need for the mother to be happy and I have considered that in weighing the various proposals of the parties.
The mother gave evidence, which I accept, about the child being sick a lot, which is not unusual for pre-school children, and that the child is not a good sleeper. The mother struggles with sleep and having the full time care of the child.
During her cross-examination the mother was criticised about the three weekly proposal. The mother made it clear that she was happy for the father to come over every second week, but accommodated his request for three weekly time.
The mother’s friendships in Melbourne have been diminished as some of her friends from mother’s groups have gone on to have a second child or moved away. I accept the mother’s evidence that she does not go out much.
The mother has been thorough in her provision of information to the father. The father clearly does not trust the mother’s decisions in parenting, this may be because members of his family or part members of his family are medical practitioners. However, the mother has been required to enter into lengthy electronic communications in relation to parenting arrangements particularly regarding medical appointments.
I am satisfied that the mother keeps the father informed as to the child’s medical circumstances and is likely to continue to do that in the future.
There were issues about the child’s constipation which the mother had treated. The mother requested that the father engage a paediatrician and continues to do so.
I accept her evidence that she has told him of 81 medical appointments for the child over the last three years or so.
There was evidence by both the father and mother and the father’s witnesses about his family not coming to the door of the mother’s house. Separation and relationship breakup is an extremely difficult process to manage.
I accept the mother’s evidence that she wanted the father present at changeovers so that she did not feel uncomfortable and she could download or pass on information.
This was particularly important as the father has, from time to time, been less than meticulous in returning items of clothing and the like for the child.
This was treated by the father and his family as a requirement that the family remain in the street. I am satisfied that this was miscommunication. It is perhaps one of the sadder parts of the polarisation that happens when relationships break down.
There was email communication between the parties in May 2017 about the travel arrangements for the child Christmas 2017. For the most part the parties were in agreement and were flexible in the arrangements. However, there was disagreement as to when the child would travel from Australia to New Zealand.[3]
[3] Exhibit E12 at page.
This is an argument over nothing. The mother informed the father months before and it was clear that she was going to have the child on that Christmas Day in any event given the agreement between the parties. Her explanation about the air tickets was reasoned and reasonable.
The mother was cross-examined about some poor language where she used one inappropriate word. The mother was at times frustrated and upset however, it is clear that both the mother and father do not demean each other or members of the others family in the presence or hearing of the child nor to members of their family.
The parties are at times less than polite to each other in the context of sorting out parenting arrangements for a very young and much loved child. This hardly surprising and hardly a matter of concern.
I found the mother was a careful and thoughtful witness. She gave evidence meticulously and her explanations were clear. She was criticised from time to time from providing too detailed an answer however, it showed the level that she involved the father and her strong support of the child’s involvement in the father’s life.
Whilst her evidence is coloured by her desire to move to New Zealand I have factored that in and I am satisfied that her evidence is generally frank and reliable.

Mr H

Mr H is the mother’s friend (‘Ms H’). She lives in New Zealand close to where the mother proposes to live. She provided evidence in terms of her affidavit to which I have earlier referred.
Ms H is married with two older boys. She has known the mother for almost 20 years and they are good friends. The mother is Godmother to one of Ms H’s children and Ms H is Godmother to the child.
Ms H has provided evidence of the mother’s struggle in caring for the child and the toll that it has taken on her emotionally and physically. Ms H has visited the mother on four occasions in the past three and a half years and the mother has visited New Zealand. Ms H hosted the child’s first birthday and the father and a member or members of his family attended at that birthday and were made to feel welcome. She provided evidence of the local schools.
Ms H is close to the mother and her evidence must be considered in that light and I have done so. I am satisfied that she is a reliable witness and her evidence is truthful.

Ms F Wilkins

Ms F Wilkins is the maternal grandmother (‘the maternal grandmother’) and provided evidence as set out in her affidavit filed 26 July 2018. She is a retired accountant and is aged 72. Unsurprisingly, the maternal grandmother came to Australia to assist the mother when she gave birth to the child. There was some conflict between the maternal grandmother and the father. Given the conflict that is likely to have been in place between the parties at and over that time that was not surprising.
There was also an element of miscommunication. The maternal grandmother was challenged about one item of fact as to the father staying at his parents’ home, his parents being away. That does not, in my view, impeach her evidence.
The maternal grandmother has come to Melbourne twice in 2016, three times in 2017 and has assisted the mother. She says, and I accept, that she could provide greater assistance to the mother if the mother was living in New Zealand.
The maternal grandmother’s evidence is coloured by her close relationship with the mother and her desire to have the mother return to New Zealand. However I accept her evidence as generally reliable.

Mr G Wilkins

Mr G Wilkins is the paternal grandfather (‘the paternal grandfather’) who gave evidence in terms of his affidavit filed 26 July 2018. The paternal grandfather is a retired professional and is aged 74. He, like the maternal grandmother, is in good health.
In terms of coming to Australia he said that they needed to plan because of the flights and the need to try to obtain less costly airfares. He also confirmed that the mother is not critical of the father. He said that the hand-overs went smoothly.
I am satisfied that his evidence is coloured by his close relationship with the mother however, he gave evidence clearly and thoughtfully. I am satisfied that he was a witness of truth.

The father

The father relied upon the following:-
(a)his case outline filed 22 October 2018;[4]
(b)his amended response to an initiating application filed 23 August 2018;
(c)his trial affidavit filed 23 August 2018;
(d)his financial statement filed 23 August 2018;
(e)an affidavit of his sister, Ms K Coates, filed 23 August 2018;
(f)an affidavit of his sister’s partner, Dr L, filed 23 August 2018; and
(g)an affidavit of Ms M filed 23 August 2018.
[4] Exhibit E2.
The father gave evidence in accordance with his affidavit and financial circumstances referred to above. He entered into about four contracts with the present company for which his consultant business is working.
The first was in early 2015 in which he was paid about $1,575 per day. The second for the period between November 2015 and June 2016 during which he was paid $1,750 per day. The third was from July 2016 to December 2017 during which he was paid about $1,900 per day, but with a weekly limit. A further contract was entered into from December 2017 until July 2018. That provided a fee of about $2,050 per day but, with a weekly limit.
The father entered into a fourth contract which runs until June 2019. In that contract he is paid $2,400 per day.
In this later contract, he negotiated working from Melbourne, but with the ability to spend regular time in Sydney. On the current project accommodation is being provided for the father in Melbourne by his work at their Melbourne office.
Interestingly, as the father is employed as a contractor he is not entitled to holiday pay or the like. He says he takes one weeks leave per year plus public holidays. He manages about two hundred people.
He agreed that he worked hard at the commencement of that contract, as he conceded in relation to an earlier contract, but that as the job is now mature he is not working those long hours.
The father said in cross-examination that it was his desire to co-parent and examples his desire to have the child overnight prior to the child turning two and the mother’s reluctance to do so.
At the time of separation the father chose to live in Sydney and chose to continue with this project. I accept there were times where the mother sought assistance and the father was, for a variety of sound reasons, not able to accommodate her requests.
His evidence in relation to his prioritising the child against his employment for the past three to three and a half years was not convincing. I am satisfied that the father has at times prioritised his work and the needs of that work over his role as a parent.
Some examples of that are in terms of the long hours he worked at that time, the limited holidays he took and which holidays he took tended to be away from the child, although given the circumstances of the parenting arrangements and the tension between the parties that is not unexpected.
In relation to the evidence and the father’s job applications in Melbourne, he at times dissembled and obfuscated in relation to that evidence. He talked about his contacts with people, although he has lodged no formal applications and has signed the contract until June of 2019. It is likely, given the evidence of Ms M, that the father would be needed for settling in of this major project on which he is working.
I accept that the father offered assistance to the mother, although in the context of what the mother said, this was at times which were suitable to him and not necessarily when the mother particularly needed assistance due to her ill-health or that of the child.
The evidence is that the parties struggled with their communication. They communicated well and the mother was, in my view, positive in her communications. However, the father did not trust the decision making of the mother and sought affirmation through medical practitioners and paediatricians. This caused tension between the parties although, to their credit, they worked through those tensions.
The mother accommodated the father in terms of seeing paediatricians, although the process of dealing with something as common as constipation in a young child was a difficult process. The process in relation to the vaccination against some meningococcal strains was similar.
That seems to have been improved in recent times as was the example with regard to the flu vaccination in May of 2018.
The father was concerned about what he regarded as a change in childcare arrangements which he was not informed of in advance. This change was a relatively modest one from three days to four days at the same childcare centre and in circumstances where he was invited to the childcare centre. The mother had provided Christmas cards for the staff with movies tickets in them and had provided the father with details of what she had written on behalf of her and the father.
The father’s complaint about this was, in my view, somewhat facile and fabricated.
Similarly, in relation to medical treatment, his complaints about the mother were somewhat facile and were unnecessary given the extent of communications about medical treatment. The father said he did not know the child’s general practitioner. I do not accept his evidence in that regard. He would have at least known the practice and the child would have been going to the same practice all of his time in Melbourne.
Sadly, the nature of litigation in family law polarises parties and leads to each pointing at the other and endeavouring, to some degree, to belittle their parenting.
To the credit of this father he acknowledges that the mother is a good mother, although some of the material was unnecessary. The mother’s use of a swear word in one email at a time of frustration was hardly relevant in the context of the overall strong communication that passed between the parties.
The parties struggled to form a co-operative co-parenting relationship after separation. They had only been together for a short period of time as a couple. They have worked co-operatively but it has involved some ‘clunkiness’ and ‘awkwardness’. However, on the evidence of the parties, the child enjoys a very strong relationship with the father and his broader family and this is to the credit of him and to the credit of the mother.
There were a series of complaints between the parties in relation to material that was not returned after weekend contact visits. These were generally respectful emails and were acted upon. In a non-litigious parenting regime these would go unremarked. In the context of such a significant change, as is the one that the mother seeks, they seem to develop a life of their own. Communication can cause miscommunication.
The father gave evidence of very limited time he resided at his Melbourne home between June and August 2018. In August he was away on holidays. In September he spent about three to four nights a week at the property and about four nights a week in October. He said he worked in Sydney on Mondays, Tuesdays and Wednesdays and sometimes Thursdays.
Given his evidence in relation to those times, and in relation to the status of his property in Sydney, his commitment to Melbourne at this stage is somewhat tenuous.
It is significant that such were the pressures of his work that when he saw the property in Melbourne to let, he arranged for Ms M to inspect it for him.
The father gave evidence of the terrific support provided by his family.
As to his evidence about his friends in Melbourne, they are mainly work colleagues, with the exception of Ms M who lives a little bit out of the town but works with him on a regular basis.
I am not sure of the absolute reliability of his evidence when he says he wants to live near the child given that he has not done so since June 2015.
I accept the father’s evidence that the cost and time involved in moving between Sydney and City B would be significantly, although not overwhelmingly, greater than that between Sydney and Melbourne.
There was some dispute as to the evidence regarding the plans to move to Sydney in terms of the father acknowledging that the move to Sydney was a trial move and that he later felt betrayed. In relation to that evidence, on balance I prefer that of the mother. It makes little difference in any event given that the parties had not been in a relationship for some time and had not learnt to live with each other in any meaningful way.
The father believes that he will lose his relationship with the child or it will be severely diminished if the child is allowed to relocate to City B. I do not accept that evidence. I am satisfied whether the child lives in Melbourne or City B the mother will enable and facilitate the relationship between the father and the child. I am also satisfied that the father will continue to spend time with the child and that, subject to his work commitments, that time will be significant and substantial as the child becomes older.
The father and mother have jointly enabled his relationship with the child to flourish and I see no reason why that would change because the child is a further two or three hours away from the father.
It would not be as optimal, in terms of the father and child, as if the parties were living in the same city and relatively geographically close to each other. That is a factor of which I have given significant regard.
In terms of the father’s evidence, there are some aspects where there is a level of exaggeration or a level of colouring to meet the outcome to which he desires. I am satisfied that he is generally truthful and generally reliable although driven by his wish for the child to remain in Australia.

Dr L

Dr L gave evidence in terms of his affidavit filed 23 August 2018. He is in a long term relationship with the father’s sister, Ms N. He supports the father and he and Ms N have been significantly involved in the father’s relationship with the child including regular trips to Melbourne.
Dr L gave some evidence of his perceptions in respect of the interaction between the father and the mother. I have no reason to doubt his views in that regard, although they are obviously coloured by his close friendship with the father. I accept his evidence as reliable and cogent. I have given reasonable weight to that evidence.

Ms K Coates

Ms K Coates is the older sister of the father. She gave evidence in terms of her affidavit filed 23 August 2018. She has also been involved in the child’s life and has supported the father. The child has a good relationship with her, as he does with most of the father’s family.
She gave evidence as to the father’s parenting of the child and of the child’s wish to spend more time with the father.
Ms Coates was strongly supportive of the father. She has travelled to Melbourne regularly. I accept her evidence as generally reliable although it is strongly coloured by her close relationship with and alignment to the father.

Ms M

Ms M gave evidence in terms of her affidavit filed 23 August 2018. She is or was a friend of both parties. She works with the father in the Melbourne office and had worked with him in the past in the Sydney office. They clearly have a strong professional association and a good friendship.
She says that the current employer is flexible and she is able to work remotely in terms of her work which has a different focus to that of the father.
Ms M said that she hoped her friendship with both the mother and father would survive these proceedings and her giving evidence in support of the father’s case. That view seems a little optimistic.
There was an exchange between herself, the bench and senior counsel for the father as to what I could infer from that. I was submitted that I should infer nothing. I do not accept that submission. I infer that since she gave evidence in the father’s case, that she is a personal friend and work colleague of the father including working with him on a day to day basis. It is more likely than not that the giving of evidence will cause a rift between the mother and Ms M. In any event they live geographically remotely apart and have not socialised in any meaningful way in recent times.
I regard her evidence as generally reliable.

Family Consultant

Ms E is a Regulation 7 family consultant at the Melbourne and Dandenong Registries of the Family Court. She provided evidence in accordance with her affidavit sworn 21 June 2018 and filed 26 June 2018.
Attached to her affidavit was her family report prepared for the Federal Circuit Court of Australia. Her qualifications were not in issue. She prepared a report dated 28 December 2017.
She interviewed the mother, father and observed the parents with the child on 15 November 2017. I note that this was just under one year before this hearing.
The family consultant was provided with the parties trial affidavits which had been filed subsequent to her report. She had read that and expressed a view that that did not change her recommendations.
The family consultant was provided with a copy of the substantially agreed parenting order.[5]
[5] Exhibit E3.
One of the issues that was before the Court, prior to the commencement of the hearing, was whether the father could practically spend alternate weekends with the child between Sydney and New Zealand. I raised with senior counsel for the father as to whether I could make a finding to that end. He said given the status of the evidence I ought not to do so.
I am not sure that weekend time was impracticable, however for the purpose of this determination and for assessment of the evidence of this witness, I have assumed that it is impracticable.
The family consultant asserted:-[6]
While the research indicates that in relocation cases, the loss of frequent time is not as significant as the loss of quality involvement with the non-relocating parent, the strong bond for [the child] with his father will undoubtedly lead to separation distress that if not addressed well by [the mother] and [the father], will potentially have long term effects on the psychological development that can have consequences for the intellectual and psychological relationship.
[6] At paragraph 144 of the Family Report.
In relation to that assertion the family consultant said that the Court ought to look at the quality of the unions to see how the child is able to self-sooth.
A number of things arise in relation to this. First the child does have a capacity to self-sooth and engage regularly with the father.
The mother must be given significant credit for this. Despite their short relationship and despite the limited time that the father has seen the child, the child has developed a very close and, in my view, meaningful relationship with the father. This has occurred not in the scope of the time and communication sought by the father, but in that in which his employment allowed him over the past three or three and a half years.
Given that the child has developed this relationship in circumstances where the father and mother have lived in separate cities essentially from June 2015 until the time of the hearing or shortly before the time of the hearing, I am satisfied that this relationship will be maintained and will continue to develop if the child is permitted to relocate to City B.
As to the relationship if the child remains in Melbourne, I accept that giving greater access in the day to day time to which the father seeks and to which the family consultant referred, there is a greater possibility of that relationship developing further however that has to be weighed, as was the evidence of the family consultant, against the bitterness and perhaps ranker of the mother if she is effectively required to remain in Melbourne separated from the close relationship with her family and friends to which she seeks.
In her report the family consultant notes at paragraph 114 the following:-
The one risk factor in [the mother’s] presentation is what appears to be a dominant view that she holds about herself as being more capable than [the father] and of him as not being consistently available, attitudes that could result in stressed and pressured caregiving as she over functions.
The question of the dominant parenting is probably correct. This is because the mother has undertaken all of the hard yards in parenting over these formative years of this child. She observes that the father has only had the care of the child, without some form of assistance or support, on five occasions and the father has said it is more likely to be a dozen occasions.
The mother does not demean the father’s capabilities as a parent. However, the family consultant goes on to say that this could result in ‘stressed and pressured care giving as she over-functions’. I do not accept that is the case that follows from the mother’s views. The mother has engaged with the father in a positive way, she has kept him informed. There have obviously been some minor issues, which I have indicated elsewhere in these reasons and blown up by the adversarial nature of these parenting proceedings, however this has not undermined the father’s relationship with the child. In many ways it has enabled the enhancement of that relationship.
As such I reject the implied considered criticism made by the family consultant in that regard.
The family consultant has accepted that the father will engage with the child as set out in his affidavit. As I have said earlier, I am not sure of that as a prospect into the future. I have said elsewhere that the father has prioritised his work at times over the relationship with the child. This is not a criticism of the father, it is simply the circumstances that he has created. Further, the father’s connection to Melbourne has been put in place but is, in my view, somewhat tenuous.
The family consultant noted that the child is a well-travelled child. I accept that as a fact and have had regard to that in this determination.
The family consultant said at paragraph 125 of her report the following:-
On the basis of the information provided, if relocation to New Zealand is permitted, it appears unlikely that [the child] will continue to experience the relationship with his father as psychologically secure as he has thus far, given the issues raised by [the mother].
I reject that conclusion. I do not accept that it will be unlikely that the child will continue to experience a relationship with his father as it has been so far. In many ways it will not be that much dissimilar to the circumstances of the relationship over the past few years.
It may not involve the time that the father proposes in Melbourne however that assertion by the family consultant that the child is unlikely to experience a relationship as secure thus far, is inconsistent with the history and simply reflects one prospective view of the aspirations into the future.
The family consultant is highly experienced and has made the conclusions as set out in her recommendations.
There are some aspects of the report where the family consultant has perhaps overreached or assumed evidence differently to that to which I have found. The family consultant rightly says that the balance is the relationship between the child and the father as against the impact on and the happiness of the mother.
I accept that the evidence of the family consultant is truthful and thoughtful. However there are some aspects of which I have discussed here and elsewhere in these reasons which cause me concern and question the recommendations made by her. I had the opportunity to observe the parties over a longer period of time and have the benefit of their tested evidence and those of their respective lay witnesses.

THE LAW

The provisions of the Family Law Act 1975 (Cth) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(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).

It is appropriate that an order should be made that the child not have his principal residence moved from Melbourne to other than City B and from City B without the consent of both parties or an order of a court exercising jurisdiction under the Act.
The family consultant observed that the mother was calm and rational with a notable level of psychological resilience and said:-[7]
56. At the appointment for this report, [the mother] presented as calm, rational and coherent, with a notable level of psychological resilience. While presenting as thoughtful about [the child’s] needs and demonstrating a parenting mind, [the mother] nevertheless also demonstrated a level of limited insight into the potential impact on the child of further geographical separation from [the father], whose caregiving and strong relationship with the child, she also acknowledged as facilitative.
[7] Family report paragraph 56.
I reject the evidence of the family consultant that the mother “demonstrated a level of limited insight into the potential impact on the child …” The mother has at all times been the primary carer of the child and has managed the geographically distant relationship between Sydney and Melbourne in place for at least 3 ½ years. She enabled a good relationship between the child and the father. The mother’s evidence was that she though carefully about the impact on the child and has taken steps to ameliorate it as set out in her thoughtful suggestions on flights, times, accommodation in New Zealand and her offers to fund and support the bringing of the child to Sydney.
It was submitted on behalf of the father, and it was the evidence of the family consultant,[8] that the mother had demonstrated a level of ‘limited insight’ into the potential impact of the child’s further geographical separation from the father. I reject that conclusion.
[8] Paragraph 56 family report.
The mother endeavoured to settle in Melbourne after the parties’ relationship broke down. She put in place arrangements for the father to regularly see the child. The father was critical of the mother for not allowing overnight time in the first two years of the child’s life. I reject that criticism as the child was very young; his contact with the father, whilst regular, was on the basis of two days per weekend. It was not unreasonable, in my view, for the mother to resist overnight time until the child was two years of age.
The evidence of the family consultant was that the mother would manage that disappointment if relocation was not permitted.
There is no evidence that the mother would not manage the disappointment and her evidence is that she would. However, it would significantly affect her happiness and contentment which, in the words of Watts J in East & Loewe (supra), is likely to impact on the child’s happiness and contentment.
It is clear that from June 2015 to date the mother’s engagement with the father and parenting of this child, almost as a single parent, has been ‘no mean feat’. The question this Court is entitled to ask and perhaps answer is to consider whether the mother should endure that for years into the future.
The family consultant said the mother could, if she wished, undertake counselling. I accept that is the case and the mother is well able to afford that. The concerns the mother had, however, were in terms of assistance at short notice. It was put that obtaining a nanny might be a solution. Sometimes when a mother or child is sick that of course may well be easier said than done.
The mother went through difficult health issues in 2015 and health issues for herself and the child in 2016. It was over that time that the mother began considering a move to New Zealand. She raised it with the father in counselling. The mother has been thoughtful and insightful into the father’s contact with the child both in Melbourne over the last three or so years and in her plans for the father’s contact with the child in New Zealand.
She initially suggested alternate weekends, which each of the parties could well have afforded, however that is not practicable. She has engaged with the school the father wants the child to attend if the relocation is not approved. She has also looked at schools and accommodation and other matters in respect of the father’s time with the child if allowed to move to New Zealand with the child.
The family consultant was cross-examined in relation to the comments made in paragraph 56 of her report. The mother generally has good insight and she has thought through the proposed relocation which showed deep thought. To this must be added the views of the family consultant at paragraph 67 of her report where she says:-
Both parties, including the mother, are focused on the child’s needs.
The family consultant, at paragraph 65 of her report, expressed some concerns that the impact of a relocation to New Zealand could give rise to the potential impact on the child’s development in terms of a negative developmental burden and said that should be considered. I did consider that matter.
Given the positive parenting that both of these parents have applied to the child, and in particular the mother, I am satisfied that her parenting is unlikely to be other than a positive approach. Therefore it is very unlikely that there will be the negative impact that was referred to in paragraph 65 of the family report. This has to be seen in terms of paragraph 131 of the family report where the family consultant observes:-
Despite the stress of living at such geographical distance from each other, it is a credit to both [the mother] and [the father] that they have facilitated [the child’s] relationship with [the father] to the extent that [the child] demonstrates a secure attachment and experiences [the father] as providing a secure emotional base from which to develop and learn.
That is likely to continue given the positive and supportive parenting offered by both parents.[9] There is no evidence that this mother would denigrate the father. The evidence is quite to the contrary, that neither the mother nor the father belittle nor diminish the other parent in the presence of the child, or even outside the presence of the child.
[9] Paragraph 92 of the family report.
There is clear evidence that the mother has, over the years, encouraged and supported the relationship and the mother has encouraged and supported communication.
I am satisfied in all of the circumstances of this case that the father and child would be able to maintain meaningful relationships in New Zealand in the circumstances which are proposed in the minute of order. I am further satisfied that given the history of this matter, this relationship will not remain static, but will develop and flower as it should and with the support of the mother. In that respect I have regard to the comments made by the family consultant in her report at paragraph 134.
In this case it is an interesting and unusual set of circumstances. The father’s support base is primarily in Sydney with his parents, siblings and broader family. That is where he clearly preferred to work over the last three and a half years and where he wanted the mother and child to live after the commencement of the relationship and around the time the child was born.
The father is now taking steps to move to Melbourne and has rented accommodation although the time spent at that accommodation, for a variety of valid reasons, has not been significant prior to the hearing, and he has retained his accommodation in Sydney.
Counsel for the mother described the father as ‘Sydney centric’. He has some ties in Melbourne, but clearly the stronger ties are in Sydney.
The mother on the other hand had lived in Melbourne for many years. She had her life without the responsibilities of parenting in that city for many years and her home and professional support was in that city. However, the reality of parenting a child without significant emotional and physical support has been a significant burden on the mother. She has called on her family and friends to support her. At times when she was in urgent situations she would call on the father and he was, on those few occasions, unavailable.
The mothers groups have, to some extent, moved on and given the need to work three or four days a week and to care for the child, the mother’s broader social interaction has shrunk. The mother’s support base is through her family and her friends in New Zealand. I am satisfied the mother is able to get work in New Zealand.
But for the father’s decision to relocate to Melbourne, which has been implemented in recent times, this would not have been the most difficult of relocation cases.
I accept the mother’s evidence that she has struggled with being lonely and feeling isolated and at times overwhelmed. I am satisfied that the family consultant has underestimated or failed to give sufficient weight to her unhappiness and the long term effects on the mother, even if she is psychologically resilient.

DISCUSSION

The relevant competing proposals in this matter are whether the child remains in the primary care of the mother, but with the father spending significant and substantial time in Melbourne, or whether the mother is permitted to relocate to New Zealand with the child and the father spends less time with the child and has less day to day contact with him.
I have considered each of these competing proposals in terms of the relevant s 60CC factors including the advantages and disadvantages, as set out earlier in these reasons.
The advantages for the mother are in terms of her happiness and psychological welfare, her closeness to her family and friends, her ability to obtain well paid work and still be able to well provide for the care of the child, together with the other matters that I have listed elsewhere in these reasons.
The disadvantages of the relocation are primarily in terms of the father’s relationship with the child. It will mean that he does not have the day to day care and does not have the flexibility to spend more time with the child. It will involve a reduction in time.
It was put to me that the relocation of the child to New Zealand would endanger the existing relationship and prevent the flowering of that meaningful relationship between the child and the father. I do not accept that proposition for the reasons, I have set out earlier.
In determining this case it is the weighing of the different proposals under the overall light of what is in the child’s best interests, I have had regard to the importance of a parties right to the freedom of movement; the father’s right to remain living in Sydney from 2015 onwards, and his right, if he chooses to, to relocate to Melbourne.
The mother has a right to relocate to New Zealand, but has made it clear that she will not do so unless the child is permitted to relocate with her. She has in her affidavit, much of which I have accepted, set out cogent reasons for that relocation in terms of herself as well as for the child.
In either scenario, in this case, the child will have suitable arrangements to spend time and communicate with the other parent and the need of the child to know and have physical contact with both his parents would be met. Obviously if the relocation is permitted, this would be to a lesser extent in City B, than it would if the child lived in Melbourne.
I have given weight to the family report, subject to those matters to which I have referred to elsewhere, and I have given weight to the father’s move to Melbourne and his desire to continue and develop his relationship with the child. I have also had regard to the limitations of the report and the advantage I have had in hearing this case over a period of days.
I have also considered the impact on the mother in terms of her relationship with the child.
Each of the parties have set out good and strong reasons as to why their respective approaches should be given more weight than the other.
In the assessment of the s 60CC factors, I have endeavoured to weigh the competing proposals not only on a factor by factor basis, but on an overall basis of which I am bound to do. One of the features in this case of which the mother gave evidence about her desire to have happiness and contentment both in her role as a parent and in a broader social and professional life. This clearly impacts on the child’s happiness and contentment.
The family consultant in this matter concluded that the child ought not to be permitted to relocate. This was in the light that the mother has facilitated a relationship between the father and the child and that the child demonstrates a secure attachment. She confirms that both parents promote the child to the other and do not diminish the other parent either in the presence or hearing of the child or broadly.
I have rejected the assessment by the family consultant that the mother would either overtly or covertly enable the father to be a less significant figure in the life of this child. She has not done so in the past and there is no evidence that she will do so in the future.
There are positives, to which I have earlier alluded, in relation to both approaches. Accordingly, I am satisfied that it is in the child’s best interests for him to be able to relocate with the mother to New Zealand and on balance, given the circumstances of the child, the mother and the father, it is not in the child’s bests interests to remain in Australia, given the impact on the mother and her genuine desire to be closer to her family, friends and community.
I have had regard to the relevant considerations under s 65DAA(2) of the Act in coming to this conclusion. I had regard to the circumstances the parties have had in place for the first three years of the child’s life and the other factors to which I have already discussed above.
As such, I will permit the relocation, which can take place on or after 31 January 2019. The orders between the parties as to what should happen in these circumstances are generally agreed subject to the comments I make above.
In Exhibit 3 there were some issues between the parties. As the Court has determined that parental responsibility is to be equal shared parental responsibility, the orders will note that that order is by consent.
The father and mother both sought orders that the child be enrolled in O School. The father has paid the fees in that respect. Given the outcome of the proceedings that order seems superfluous.
Exhibit 3 order 6 provided that the parties have the responsibility for making day to day decisions in relation to the child. That order seemed unnecessary and superfluous and I have not made it.
As I am permitting the mother to relocate with the child to New Zealand on or after 31 January 2019 there will need to be a continuation of parenting orders whilst the child remains in Australia. Given that the parties had agreed to orders that the child spend time with the father in paragraph 7 of Exhibit E3. I have applied those provisions for the final week or two of December 2018. From 21 December 2018 to the holiday provisions that the parties had agreed to over the 2018/2019 Christmas period will apply.
There was an issue between the father and mother as to whether the time the father saw the child on the three block periods when she takes the child to Sydney, or Melbourne as the case may be. There was a dispute as to whether the commencement time should be 10.00am at the request of the mother or 12.00 noon at the request of the father and whether time should conclude at 2.00pm at the request of the mother or later at the request of the father.
I have considered these orders in the light of the travel arrangements. The mother can travel to New Zealand on the Thursday night. It will be a late night for the child however, the child can sleep in and see the father at 10.00am the following day. When the child comes back into the mother’s care on the Tuesday afternoon it is better for the child to leave early so that he has a decent night’s sleep before attending school the next day.
I am conscious that this will take the child out of school for additional time during school term. This will not be a serious concern in the first years of the child’s schooling however, the parties will need to consider the arrangements in terms of making arrangements around Monday and Fridays and long weekends, and as the child becomes older to consider whether this time out of school ought to continue. I have had regard to that in the overall consideration of the mother’s request to live with the child in City B.
Whilst it was not argued, it seemed appropriate that the child be returned to the mother’s care a few days before the commencement of term in each year, so that appropriate arrangements can be made for shoes, school uniforms and the like. It is intended that this does not reduce the father’s time over the school holiday period and also that it does not impact on the alternate Christmas arrangements that the parties have so carefully put in place.
Given all of the facts and circumstances I make the orders set out at the commencement of these reasons.

I certify that the preceding three hundred and six (306) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 December 2018.

Associate:

Date: 14 December 2018

[2018] FamCA 1098

14 December 2018

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Consent

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction