Wilstrop & Wilstrop

FAMILY COURT OF AUSTRALIA

WILSTROP & WILSTROP

[2007] FamCA 1696

FAMILY LAW – CHILDREN – Relocation – Wife seeking to relocate from WA to NSW – Mother not intending to relocate without children – Consideration of authorities regarding relocation – Wife has extended family members and fiancé in NSW – Children have close relationship with the husband – Cannot be satisfied on the evidence that separation from the husband would not have long term effects for the children – In the best interests of the children to remain living in WA near the husband and in the equal care of both parents – Wife’s application for relocation refused

PROPERTY – Agreement as to contributions – Parties unable to agree on appropriate adjustment for s75(2) factors – Adjustment made in favour of the wife of 7.5%

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68F, 68F(2), 75(2)

AMS v AIF: AIF v AMS (1999) FLC 92-858
A v A: RELOCATION APPROACH (2000) FLC 92-035
H v L (2000) FLC 93-036
U v U (2002) FLC 93-112
Bolitho & Cohen (2005) FLC 93-224
Morgan & Miles [2007] FamCA 1230
Taylor & Barker [2007] FamCA 1246

APPLICANT:

Mr Wilstrop

RESPONDENT:

Ms Wilstrop

FILE NUMBER:

PTW

2343

2007

DATE DELIVERED:

11 December 2007

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Perth, WA

JUDGMENT OF:

Burr J

HEARING DATE:

29-31 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rynne

SOLICITOR FOR THE APPLICANT:

Chris Baker & Associates

COUNSEL FOR THE RESPONDENT:

Mr Jones

SOLICITOR FOR THE RESPONDENT:

SFL Lawyers

Proposed Orders:

That the wife’s application to relocate to S in the State of New South Wales with the children T born … June 1998, C born … April 2001 and F born … December 2004 be and the same is hereby refused and dismissed.
That save and except with respect to the Orders which apply for the balance of school term 4 in 2007, all previous Orders of this Court and any other Court of competent jurisdiction, be and the same are hereby discharged.
That the Orders which apply for the balance of school term 4 in 2007 be and the same are hereby discharged as and from the conclusion of school term 4 in 2007.
That the parties have equal shared parental responsibility for the children.
That the children spend equal time with each of the parties in the manner following:-
(a)during school terms from the commencement of school term 1 in 2008, the children:-
(i)live with the husband from 5.00 pm on Saturday 2 February 2008 until 5.00 pm on Saturday 9 February 2008 and each alternate week thereafter;
(ii)live with the wife at all other times
PROVIDED THAT:-
A.in the event that the husband would have to arrange child care for F prior to his commencement at kindergarten or school, at the option of the wife F is to remain in the care of the wife for the duration of such periods.
B.the parties shall be entitled to attend as spectators, coaches, volunteers or the like during any organized sporting or other extra-curricular activities of the children even though in the care of the other party;
C.the parties be at liberty to attend all school organized or associated speech days, graduation events, sports events, concerts, parent / teacher interviews and the like for the said children even though in the care of the other party.
(b)    during Christmas school holiday periods, save and except for the Christmas Eve / Christmas Day / Boxing Day period, the children:-
(i)live with the husband for the first half thereof commencing in 2007 and each alternate year thereafter;
(ii)live with the husband for the second half thereof commencing in 2008 and each alternate year thereafter;
(iii)live with the wife at all other Christmas school holiday times.
(c)    for the Christmas Eve / Christmas Day / Boxing Day period, the children:-
(i)live with the husband until 12 noon on 25 December 2007 and each alternate year thereafter;
(ii)live with the wife from 12 noon on 25 December 2007 until 12 noon on 26 December 2007 and each alternate year thereafter;
(iii)live with the wife until 12 noon on 25 December 2008 and each alternate year thereafter;
(iv)live with the husband from 12 noon on 25 December 2008 until 12 noon on 26 December 2008 and each alternate year thereafter.
(d)    during all other school holiday periods, the children:-
(i)live with the husband for the first half thereof in 2008 and each alternate year thereafter;
(ii)live with the wife for the second half thereof in 2008 and each alternate year thereafter;
(iii)live with the wife for the first half thereof in 2009 and each alternate year thereafter;
(iv)live with the husband for the second half thereof in 2009 and each alternate year thereafter.
That the children have reasonable telephone, SMS, email, web cam or other electronic communication with the party with whom they are not living or with whom they are not spending time.
That the parties inform each other of any significant medical issues concerning the children including the details of any treating practitioner and each party shall authorize any treating practitioner and any other hospital or organization assisting in the care of the children to discuss with the other party the children’s medical issues, progress and treatment.
That as soon as is reasonably practicable in the circumstances, each party do inform the other immediately of any medical emergency affecting either of the parties or any of the children.
That each party keep the other informed at all times of full details of their address, landline / mobile / work telephone numbers and email addresses.
That in full and final settlement of issues of property settlement between the parties:-
(a)The husband do pay to the wife within sixty [60] days of the date hereof the sum of TWO HUNDRED AND FORTY ONE THOUSAND AND SEVENTY EIGHT DOLLARS ($241,078.00).
(b)Contemporaneously with the payment of that amount to the wife by the husband pursuant to paragraph 10 (a) of these Orders, the wife do and she is hereby directed to transfer to the husband forthwith at the husband’s expense in all respects all that her right, title, estate and interest both at law and in equity in the property situated at …, D, in the State of Western Australia (“the [D] property”) PROVIDED THAT if the wife shall refuse or neglect to execute a Memorandum of Transfer in properly registrable form of her right, title, estate and interest in the said land to the husband within seven [7] days after the same shall have been tendered to her by or on behalf of the husband for that purpose then and in such case a Registrar of the Family Court of Western Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.
(c)The husband do hereafter duly pay and discharge to the exoneration of the wife:-
(i)all mortgage instalments, rates, taxes and other outgoings in relation to the D property;
(ii)      the overdraft with the ANZ Bank;
(iii)     the parties’ joint credit card debt;
(iv)     the ANZ personal loan
and do indemnify the wife against any liability in relation to any such payments.
(d)The wife do hereafter duly pay and discharge to the exoneration of the husband all amounts required by her family members in repayment of the liability due to them and do indemnify the husband against any liability in relation thereto.
(e)The husband’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the wife:-
(i)       the wife’s personal effects, clothing and jewellery;
(ii)      the furniture and household effects in the wife’s possession;
(iii)     the wife’s Hyundai Sonata motor vehicle;
(iv)     the wife’s savings and investments;
(v)       the wife’s superannuation benefits and entitlements.
(f)The wife’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the husband:-
(i)the husband’s personal effects, clothing and jewellery;
(ii)the furniture and household effects in the husband’s possession;
(iii)the husband’s Hyundai Santa Fe motor vehicle;
(iv)the husband’s savings and investments;
(v)the husband’s Allycraft runabout boat;
(vi)the husband’s superannuation benefits and entitlements.
(g) Save and except with respect to the debts due and payable as dealt with in paragraphs 10(c) and 10(d) of these Orders, henceforth each party shall discharge without calling upon the other to contribute thereto the debts and liabilities contracted by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.
(h) If the husband do make default in payment of the sum or any part thereof mentioned in paragraph 10(a) of these Orders then and in such event the husband do pay to the wife interest thereon at the rate prescribed by the Family Law Rules 2004 AND FURTHER that the D property be sold and the net proceeds of sale applied in the manner following:-
(i)     To the wife the sum of $241,078.00 or such balance as then remains due and outstanding together with interest thereon at the aforesaid rate calculated from the said due date for payment to the date of payment to the wife of the said sum or such balance as at that time shall remain due and outstanding to the wife; and
(ii)    To the husband the balance thereof.
That the parties be at liberty to apply as to consequential Orders.
That the application and response be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: PTW 2343 of 2007

MR WILSTROP

Applicant

And

MS WILSTROP

Respondent

REASONS FOR JUDGMENT

THE APPLICATIONS

The parties have three children, T (“[T]”) born in June 1998, C (“[C]”) born in April 2001 and F (“[F]”) born in December 2004. Thus the children are respectively 9, 6 and nearly 3 years of age.
The wife wishes to relocate with the children to the township of S in the State of New South Wales. The husband is opposed to that move. It is a matter requiring my determination.
The wife has indicated that she will not relocate to S without the children. If she is not permitted to relocate with the children, she intends to remain in Perth and continue her accustomed parenting role.
A further issue which the parties have not been able to resolve and which requires my determination is that as to settlement of property.

BACKGROUND

Both parties were born in New South Wales, the husband in Sydney and the wife on the Central Coast. The husband is 44 years of age and the wife 36 years of age.
The husband moved to Western Australia to undertake a Bachelor of Arts degree in primary teaching in January 1989 before moving back to Sydney in December 1991, completing his degree there and commencing work as a primary school teacher in Sydney.
In March 1994 the parties met. They commenced cohabitation in New South Wales before becoming engaged in July 1995. They married in New South Wales in July 1996.
In early 1997 the parties decided that they would move to Western Australia and did so in April 1997. The wife found work almost immediately in Western Australia in a clerical position and the husband secured a teaching appointment at M primary school in mid 1997.
In September 1997 the parties purchased a residential property in K.
In January 1998 the husband secured full time employment as a teacher at E primary school and in the … Aboriginal Centre.
The parties’ first child T was born in June 1998 and the wife returned to work for five days per fortnight after a period of some months absence for the latter stages of her pregnancy and for T’s birth.
The parties sold their property at K in December 1999 together with the town house purchased in September 1989 by the husband in H prior to the commencement of the parties’ relationship. They then purchased a block of land at D and in January 2000 contracted to build a house on that land. They were able to move into that property in October 2000. That property remained the matrimonial home property until the separation of the parties.
The wife took maternity leave for 12 months from April 2001 until April 2002. The child C was born in April 2001.
In December 2004 the child F was born.
In September 2006 the wife flew with the children to visit her family in S in New South Wales and there she met a Mr N, also 36 years of age. She was introduced to Mr N by her mother. Some two and a half months after separation the wife became engaged to Mr N.
Shortly after the wife’s return to Western Australia the parties separated under the one roof, namely on 12 October 2006. The parties thus cohabited for a period of some 12 years.
On 22 November 2006 the wife left the former matrimonial home and took up residence in a rental property in J. The husband remained in occupation of the former matrimonial home property.
Subsequent to the separation, the parties were able to reach agreement as to the time the children were to spend with each of them. The children spend three nights per week with the husband and four nights per week with the wife. They are with the husband from 5.00 pm on Friday until 7.45 am on the following Monday and with the wife for the balance of the time. The care arrangements are reversed during school holiday periods. That arrangement continues to the present day.

THE EVIDENCE

Each of the parties gave evidence in support of their applications before the Court.
The wife also called evidence from her father Mr RD, her mother Mrs CD, her brother Mr BD, her fiancé Mr N and by telephone link, from her grandfather Mr O. It was further agreed between the parties that the affidavit of Mr R filed 10 October 2007, was in evidence before me. The husband did not require him for cross-examination.
The husband further relied upon the evidence of Ms A contained in her affidavit filed 11 October 2007 and Mr J contained in his affidavit filed on 12 October 2007. Neither witness was required by the wife for cross-examination.

RELEVANT LAW

Prior to the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 on 1 July 2006, the approach to determining a case involving the proposed relocation of a child’s residence had been settled by the High Court in AMS v AIF : AIF v AMS (1999) FLC 92-858 and the subsequent Full Court decisions of A v A : RELOCATION APPROACH (2000) FLC 92-035 and H v L (2000) FLC 93-036. There had been a more recent High Court case, namely U v U (2002) FLC 93-112, but that case did not alter the basic principles to be applied; what it did do was ameliorate the strict approach set out in A v A (supra). As was said by the Full Court in BOLITHO and COHEN (2005) FLC 93-224:
“72.We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”
The High Court stressed that the objective is to achieve what is in the children’s best interests. Those interests may not though be best reflected in the proposals advanced by the parties. All options that are open on the evidence (subject to procedural fairness) need to be considered.
In a case where there is also a dispute as to with whom the children should live there can be no dissection of the case into discreet issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be permitted (AMS v AIF : AIF v AMS, supra, per Gaudron J p.86,032). Further, the welfare or best interests of the children remains the paramount consideration but it is not the sole consideration. For example, the “legitimate interests and desires of the parent cannot be ignored” (AMS v AIF : AIF v AMS, supra, per Kirby J p.86,041). Moreover, a Court cannot require the applicant to demonstrate “compelling reasons” for the relocation of a child’s residence “contrary to the proposition that the welfare of the child would be better promoted by” maintenance of the existing circumstances (AMS v AIF : AIF v AMS, supra, per Gleeson CJ, McHugh and Gummow JJ p.86,027).
In A v A : RELOCATION APPROACH (supra) the Full Court set out in summary form the relevant principles to be applied as follows (p.87,551-87,553);
"In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate ‘compelling reasons’ for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
1.A court will identify the relevant competing proposals;
2.For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
·As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a)None of the parties bears an onus:
·       In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b)The importance of a party's right to freedom of movement:
·       In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
·       In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c)Matters of weight should be explained:
·       In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
·       In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.”

The High Court in U v U (supra) doubted though that the strict application of this three stage process was always appropriate. Gummow and Callinan JJ said this, at p.89,089:
“We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discreet and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s.68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.”
As stated previously, the Family Law Amendment (Shared Parental Responsibility) Act 2006 came into force on 1 July 2006, introducing significant changes to the determination of children’s issues. The objects and principles are now stated in Section 60B in the following terms:-
(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 fulfill 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 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).
Whilst now found in a different section, one thing has not changed and that is, that in determining a dispute over children, the best interests of those children are to be regarded as the paramount consideration. That principle is now found in Section 60CA which in turn guides the Court to consider factors enumerated in Section 60CC. It directs the Court to analyse primary and additional considerations which I do later in these reasons.
Other new relevant provisions of the legislation include the presumption of equal shared parental responsibility which flows from Section 61DA and the requirements of Section 65DAA, which requires the court to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with both parents, or if not, substantial and significant time, where the parents are to have equal shared parental responsibility.
The Full Court has recently addressed the issue of relocation following the Shared Parental Responsibility Amendments. In Morgan & Miles [2007] FamCA 1230 (delivered 17 October 2007), Boland J, in hearing an appeal from interim orders of a Federal Magistrate, discussed whether the Act now requires different principles to be applied in determining a parenting application when one party wishes to relocate. Her Honour stated at paragraph 72 of her reasons:
“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.
…
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.”
At paragraph 80 her Honour outlined:

“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.”

The Full Court also addressed the approach to be taken by the court when determining relocation applications in Taylor & Barker [2007] FamCA 1246 (delivered 19 October 2007). The reasons are contained in the judgment of Bryant CJ and Finn J, with whom Faulks DCJ agreed with respect to their Honours’ analysis and application of the law.
Bryant CJ and Finn J stated at paragraph 60 that “a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.” The court outlined that in determining cases involving a relocation proposal, the legislation gives no guidance as to the “appropriate order” in which to consider the provisions of Part VII of the Act. Their Honours indicated, at paragraph 62, that the starting point was s 60CC:
“However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.”
The Full Court indicated it is then necessary to consider pursuant to s 65DAA whether it is in the best interests of the child to spend equal time or substantial and significant time with each parent, without regard to the relocation proposal. Their Honours pointed out that the “commonsense construction” of s 65DAA makes it clear it is only necessary to consider if equal or substantial and significant time is “reasonably practicable” if the Court has already concluded such is in the best interests of the child (at paragraph 74).
The next step is to evaluate the differing proposals of the wife and husband and to consider whether equal or substantial and significant time would be reasonably practicable if the party is permitted to relocate (at paragraph 79).
The Full Court concluded at paragraph 81:
“81.We acknowledge that his Honour’s approach to the application of s 65DAA, which we have endorsed, does require that the matters which the court has to consider under that section (being “equal time” or “substantial and significant time”), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.
82.We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83.However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.”
To summarise, the Full Court in Taylor & Barker (supra) endorsed the approach taken by the Federal Magistrate’s approach in the determination of the relocation proposal in question, which was to:-
·Consider and evaluate the factors in s 60CC
·Consider whether it is the child’s best interests to spend equal or substantial and significant time with each parent pursuant to s 65DAA, without regard to the relocation proposal
·Evaluate the proposals of the parties. Any relocation proposal will have to be balanced against the option of “equal” or “substantial and significant time”, if either has been found to be in the child’s best interest, and will include a consideration of whether the arrangement is “reasonably practicable” if relocation is permitted.
28.It would seem apparent in light of the new emphasis of the legislation provided in s 65DAA that the Full Court has moved away from the previous position in AMS v AIF : AIF v AMS, supra, and A v A : RELOCATION APPROACH (supra) that relocation was not to be considered as a discrete issue.
29.Their Honours made it clear, however, that a “failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.” (at paragraph 63).

RELEVANT FACTORS

In my view the evidence presented in these proceedings on the relocation issue and issues of credit are best discussed within the context of a consideration of the factors requiring my attention pursuant to Part VII of the Act, being obliged as I must to make my decision on what is the appropriate outcome in this case by a consideration of the best interests of T, C and F. In fact that decision “must regard the best interests of the children as the paramount consideration” (Section 60CA).

SECTION 60CC

Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

Some guidance is found in the legislation as to what might constitute a “meaningful relationship”. That can be found in the Objects and Principles outlined in Part VII of the Act. In particular Section 60B(1)(a) states one of the objects as:-
“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.”
As to the principles enumerated in Section 60B(2), the first three appear the most relevant in the enquiry as to what constitutes a “meaningful relationship” and they are:-
(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 share duties and responsibilities concerning the care, welfare and development of their children;
Whether or not a “meaningful relationship” can be enjoyed by the husband and T, C and F in the event that I permit the wife’s relocation with the three children to S in the State of New South Wales, will depend to a large degree upon the quality of the existing relationship, the willingness of the parties to maintain that relationship and whether different forms of time spent by the husband with his three children and different forms of communication can adequately ensure the maintenance of that relationship. I examine those issues in greater detail when considering the additional considerations set out below.

(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

This sub-section has no relevance to the determination of the issues in this matter. T, C and F are adored by each of their parents and enjoy a loving and nurturing environment when with each of them.

Additional considerations

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

The parties did not seriously advance any evidence as to views expressed by the children on the issue of relocation. Such evidence that was given, is of no value to me given the circumstances in which those views were said to have been expressed and the tender ages of the children.

(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);

On the wife’s case, this issue looms large. A significant emphasis of her application for relocation has been the presence of extended family members in S, other parts of New South Wales and southern Queensland.
The quality of the relationship between both parents and their children, was not in dispute in these proceedings. To their credit, in the midst of a highly emotional dispute, both parties acknowledged the loving and healthy relationships which exist between the children and the other parent. They were refreshingly positive about the significant role that the other parent plays in the lives of the three children. Criticisms were minor.
Clearly, in whatever Orders I ultimately frame, it will be essential to recognise the importance of the relationship that the children enjoy with their parents and to ensure as much as possible, that those relationships can be sustained and fostered. I am satisfied that the sound and loving relationships have been built on a foundation of excellent emotional support, particularly through and beyond the separation process, and by close physical proximity and contact.
I am satisfied that during the course of the cohabitation of the parties the primary caring role fell to the wife but that the husband’s role was by no means insignificant. I am satisfied that, work commitments permitting, he played a visible and significant role in the care of the children.
Since separation, the care of the children has been effectively shared. They spend four nights per week with their mother and three nights per week with their father. However, the husband’s time with the children is on weekends and hence his “hands on” parenting role is significant. I will need to be careful to ensure the maintenance of the stable, nurturing and meaningful relationships the children enjoy with both parents, in whatever decision I make and Orders I frame.
The nature of the relationship that the children enjoy with each of their parents has been assisted by the open and flexible communication between the husband and the wife. I am satisfied on the evidence that there has been only a limited number of occasions when emotions have overtaken the parties and resulted in a handful of examples of inappropriate disputation in the presence of or within the earshot of the children.
The husband was devastated by the separation. The wife acknowledges as much. However, it is a credit to him that he has managed to shield the children in large part from any outward signs of his internal grief. The wife too deserves credit. She has managed her disappointment in not being able to live with her fiancé and be nearer her parents. The children have not been the victims of her disappointment.
I am satisfied too that the children enjoy excellent relationships with extended family members in Perth, being the wife’s brother Mr BD and the husband’s sister Ms L.
The children’s maternal grandparents are also important figures in their lives. I am satisfied that they maintain regular contact with their maternal grandparents who reside in S in New South Wales through frequent telephone communication and occasional visits. Also the maternal grandparents visit Perth at least once per annum. The children’s relationships with their maternal grandparents is a positive in their lives and adds to the stable, nurturing environment in which they live.
The husband’s parents live in New South Wales. The children have no contact with either of them. The husband’s parents separated when he was young. His mother is now quite ill and awaiting a bed in a nursing home. The wife has indicated that if she is permitted to relocate to S, she will endeavour to establish or reinvigorate relationships between the children and the paternal grandparents.
The wife’s fiancé Mr N has had relatively limited exposure to the children. However, I am satisfied that they enjoy a friendly relationship with him and that he is a suitable role model for them. They have spent time with him in New South Wales when they have visited with the wife, and also in Perth when Mr N has visited on a few occasions, albeit for periods of relatively limited duration of a few days. Whilst the future of the wife’s relationship with Mr N, like all relationships, is ultimately unpredictable, I am satisfied that they love each other, wish to be with each other, and intend to marry in January 2008. They recently suffered the tragedy of the miscarriage of their unborn child. Mr N was by the wife’s side for two weeks in Perth at that time. He is loving and supportive of the wife and her needs.
The children T and C also enjoy a number of friendships with children in their area and at school and through their sporting commitments. They are familiar with their teachers and other adults with whom they have regular contact.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

If both parties were to remain resident in Perth, this would simply not be an issue. Their conduct in ensuring ongoing close relationships between the children and the other parent has been close to exemplary.
It does though become a significant issue within the context of the wife’s application to relocate to S. If I am not satisfied that the wife could demonstrate that willingness and capacity in circumstances where the children were so far from their father, then that could effectively be the end of the wife’s prospects of success. I was impressed by the wife. She gave her evidence in a frank and forthright manner. I believe her when she says that she will do everything she can to maintain the acknowledged close relationship that her children enjoy with their father. Thus, in my view on the evidence, the issue is not the wife’s (or indeed the parties’) willingness to facilitate and encourage close and continuing relationships, but rather their capacity and ability to do so.
I expressed to the wife’s counsel during closing addresses one area of concern and it related to the wife’s mother. Neither the wife’s mother nor the husband made any particular secret of the fact that they were not great admirers of one another. Their relationship is strained. I indicated to counsel for the wife my concern that the maternal grandmother’s antipathy towards the husband may cause problems for the wife in ensuring an ongoing close relationship between the children and their father in the event of a relocation to S. However, I am satisfied that the wife’s counsel’s response was correct in that the wife’s commitment to her children and their relationship with the husband is such that she would not permit her mother to interfere in that close relationship if indeed the maternal grandmother did. I am not suggesting that the evidence indicates that the maternal grandmother will be deliberate in her actions in that regard, but rather that she might find it difficult to disguise from the children her distaste for the husband.
Distance is the greatest enemy in this matter. The parties agreed that Perth and S were some 5,000 kilometres apart and that it would take some 10 hours in travel, door to door for each leg of the return journey. It would also involve an overnight stay for the children and the wife with relatives in Brisbane.
Thus, whilst I am satisfied that each of the parents, and particularly the wife in the event of any relocation to S, would do everything they could to physically and emotionally support the relationship of the children with the other parent, sheer physical distance and the associated cost will inevitably make it harder for the children to maintain their relationship with their father than if they remained in Perth.
The ability to facilitate and encourage the acknowledged close relationship the children have with the husband in part becomes a question of money. Whilst there was some dispute between the parties as to the actual cost of air fares, there was general acknowledgment that they are expensive. F is too young to travel unaccompanied and thus return air fares would be required for each of the three children plus an accompanying adult.
The wife’s grandparents have generously offered to advance to the wife an inheritance of some $40,000 for the sole purpose of providing for those air fares. Counsel for the wife though acknowledged that that money would be extinguished in no more than a few years, given the estimated annual cost of travel for the children.
In the event that I determine that it is in the best interests of the children that they be permitted to relocate with their mother to S, then it would be appropriate that the husband contribute to some of the costs associated with him maintaining his close relationship with his children. He is a school teacher earning some $65,000 per annum as a package, but with some salary sacrifice receives a taxable income of $56,000 per annum. Thus he could afford to contribute something towards the cost of air fares, but not a great deal. He pays child support of $135 per week and has paid the appropriate level of child support since separation without falling into arrears. His disposable income is not, and will not, be significant.
As I said though, money is only part of the problem. Another impediment imposed by the significant distance is the need to confine physical contact between the husband and the children, to school holiday periods. Weekday participation in their lives will not be possible. Neither party wants the children to miss essential schooling.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

This too is a significant issue. The most obvious impact upon the children in the event that I permit a relocation to S, will be the serious diminution of the close physical relationship they enjoy with the husband. Presently the children spend almost one-half of each year with their father. They spend three nights per week and half of school holidays with him. Thus, without doing the calculation exactly, they spend in the order of 160 to 170 nights per annum in the care and company of their father. It is the wife’s proposal that in the event of a relocation to S, the children spend all of the short school holidays with their father and one-half of the Christmas school holiday period, which equates to approximately 70 nights per annum, a reduction of approximately 100 nights each year with their father. They would thus be spending some 60% less time with their father than they presently enjoy.
The exercise, of course, is not just a mathematical one. The question still remains as to whether or not those changes in the children’s circumstances would impact upon the meaningful relationship they enjoy with their father. Could that meaningful relationship still be sustained by regular telephone, card, letter, email and web communication plus approximately 70 nights of physical contact per annum? I am satisfied that it would be difficult and that the relationship between the children and their father will suffer significantly. As I said earlier in these reasons, the husband has always been, particularly since separation, a “hands on” father. His role in their physical care, their sporting pursuits, their recreation, their health, their education and their general nurturing has been, and is, significant. It is not a role to be dismissed lightly within the context of the children’s best interests.
F is not yet 3 years of age. A physical separation from his father for extended periods of some months between school holidays is unlikely to find any compensation in other forms of communication. I am satisfied too that it will have a negative impact upon his capacity to closely attach to and bond with his father, although to what degree is unpredictable.
As Kelly and Lamb say in their article “Developmental issues in relocation cases involving young children: When, whether and how?” (2003) 17(2) Journal of Family Psychology 193 at 202:
“For very young children, the deterioration or termination of attachment relationships with non-moving parents may create psychological risks with long-term consequences. To minimize the price children pay in such circumstances, steps must be taken to promote continued relationships with both parents by attempting to discourage or delay moves with very young children, and by ensuring that children continue to have regular and meaningful interaction with their non-moving parent.”
Boland J sitting on appeal from a decision of a Federal Magistrate in Morgan & Miles (2007) Fam CA 1230 referred briefly to this factor when at paragraph 102 she indicated it was entirely appropriate and relevant to consider:-
“the ages of the children and the level of time spent with the father and paternal family which occurred prior to the mother’s unilateral move;”
It was the wife’s evidence that the children would be a bit “teary” at first but that they would get over it quite quickly with careful nurturing and loving support. She is of the view that T and C would find the adjustment more difficult than F but she did not believe there would be any long term effects upon the children. The husband’s evidence was to the contrary.
I cannot be satisfied on the evidence that there would be no long term effects for the children, particularly F, given the husband’s input into the children’s lives for something not much short of one-half of their annual lives. I am satisfied that there will be some short term distress for them, particularly T and C which may extend into the medium term. This is within the context that neither parent can be said to be the primary carer of, and for, the children. Whilst it is a credit to the wife that she has involved the husband to this extent and not only not resisted his involvement to that extent, but actively encouraged it, it does raise an impediment to her application to relocate in considering what represents the children’s best interests.
A benefit to the children of a relocation and thus a positive effect of that change in their circumstances will be their opportunity to spend more time with their extended family members, particularly the maternal grandparents and maternal great grandparents. I also accept the evidence of the wife that she will use her best endeavours to foster and encourage a relationship with the children’s paternal grandparents, although it seems that the paternal grandmother is quite frail and thus her attempts may come to naught.
These aforementioned concerns and issues of difficulty and expense would, of course, be drastically reduced if not eliminated altogether in the event that the husband was prepared to relocate to S. He has previously taught in New South Wales and I am satisfied that he would have no difficulty ultimately in securing a teaching appointment in New South Wales, although I accept his evidence that he is too late to secure a position for 2008. He indicated, however, that he had no desire to do so. He is happy with, and feels secure in, his career progression within the Western Australian education system over the past nearly 11 years. His professional security is important to the children and their interests given that he is the principal contributor to their financial wellbeing. He is also concerned about his reception in the relatively small town of S where the maternal grandmother feels clear antipathy towards him.
Another change in the children’s circumstances which it is appropriate that I consider, is the prospect of Mr N relocating to Perth. He has a very “transportable” career in that he is in the agricultural industry. Only as recently as two years ago he moved to S in New South Wales. I am satisfied, on the evidence, that there is a significant number of opportunities for him to secure employment in Perth, a fact he acknowledged in evidence. He said that he had broad skills. I accept that in the early stages he is unlikely to earn an income in the order of that which he is presently earning, namely some $63,000 per annum, but he does have some modest assets including cash reserves of $70,000. However such a change in the children’s circumstances would have the least significant impact upon them. In fact, that change in their circumstances would have minimal effect. Indeed it would be a positive change in their lives. The children have a good and appropriate relationship with Mr N but more importantly and most significantly, their mother would be with the man whom she loves and intends to marry. Her life and outlook would improve. Mr N said that if relocation was refused he would move to Perth to be with the wife as soon as he could. He said that he was only obliged to give one month’s notice to terminate his employment arrangement in S. This would result in no disruption to or dislocation of the children’s lives, save the positive effects of Mr N’s arrival. Their happy, stable and contented lives would continue virtually as is and as has been for many years.
A further significant factor to be considered in the event that the children relocate to S is that T and C will have to repeat one year of their primary schooling. T will have to repeat Year 4 and C Year 1. It is a matter required of them by the New South Wales Department of Education. It will thus overall add one year to their school life. It is of particular effect and impact upon T who is recognised as a gifted and talented student academically with the potential for her schooling career to be advanced rather than restrained.

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

I have touched on this issue earlier in my reasons. It is a significant issue. The large distances and the consequent costs of maintaining physical contact, loom large in this matter given the limited means at the parties’ disposal. As I identified earlier, the husband has an annual taxable income of $56,000. The wife has secured employment in S, as evidenced by the affidavit of Mr R filed on 5 October 2007, from which she will derive an income of at least $24,000 per annum. That is better than her current income from her own exertion stated in her Financial Statement filed 2 May 2007 as being some $11,000 per annum. She also has access to an amount of $40,000 being generously offered by her grandparents.
Both counsel concede that the costs of maintaining physical contact with the husband would be high. The children will not be able to travel unaccompanied for at least another two years when F attains the age of 5 years. Even then, the security of the children will need to be guaranteed by direct flights rather than them have to suffer the uncertainty and potential risks of changing flights in busy airports. I accept the wife’s evidence that she would drive the children to a major hub, probably Brisbane, and ensure that they caught direct flights between Brisbane and Perth.

(f)the capacity of:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

to provide for the needs of the child, including emotional and intellectual needs;

and

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

In my view it is appropriate to deal with these two sub-sections together as they present similar issues for my consideration and determination.
These matters were not made an issue by either of the parties. Clearly they are both good parents, they communicate where appropriate and attend to all of their children’s emotional, physical and intellectual needs. Each of them has the capacity to do so. The husband is particularly well placed to cater to the children’s intellectual needs given his qualifications and experience as a primary school teacher.
Each of the parties impressed in their own way. I am satisfied that in the event that relocation was permitted, the wife would do all that she could to attend to the additional emotional needs of the children which I am satisfied will arise upon a change in their contact with their father. Equally I am satisfied that she will be able to mask her own disappointment in the event that she was not permitted to relocate such that the children did not suffer any consequences of that decision. She and the husband will ensure that the children remain feeling safe and secure.
The parties are caught in a difficult situation. Each of them recognises and acknowledges the importance of the other to their three children. Each would desperately like to be able to find a workable solution. I am satisfied that the husband is not opposed to the wife’s relocation out of spite or vindictiveness. The wife equally is not looking to relocate to S out of spite or vindictiveness. She wishes to be closer to her parents and her fiancé and have immediate access to their comfort and support. The husband simply cannot contemplate the loss of his regular, extensive and frequent contact with his children.

(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)the likely impact any proposed parenting order under this Part will have on that right;

and

(j)any family violence involving the child or a member of the child's family;
and
(k)any family violence order that applies to the child or a member of the child's family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;

No matters of relevance emerge for my consideration pursuant to these sub-sections.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

It is my view that the evidence suggests that little of relevance emerges for my consideration pursuant to this sub-section. If the wife is permitted to relocate and did not comply with Orders of the Court, then the husband may well institute further proceedings to enforce his entitlement. However, I am confident that the wife would abide any Orders of this Court. She well and truly recognises the importance of the maintenance of a relationship between the husband and the children.
In the event that I did not permit relocation, history demonstrates that the parties would continue to abide Orders of the Court and co-operate in all relevant respects as to matters which impact upon the welfare of their children.
I cannot though rule out the possibility that the wife might make a further application to relocate at some time in the future when the children are older in the event that this application is refused.

(m)any other fact or circumstance that the court thinks is relevant.

No additional matters of relevance arise for my consideration pursuant to this sub-section.

SECTION 60CC(4)

Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfillled, or failed to fulfill, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long-term issues in relation to the child; and
(ii)    to spend time with the child; and
(iii)   to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long-term issues in relation to the child; and
(ii)    spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfillled, or failed to fulfill, the parent’s obligation to maintain the child.
Within the context of this sub-section, the conduct of the parties to these proceedings has been exceptional. Each has taken every opportunity to spend time with their children and fulfill their parental obligations. They have each facilitated the relationship of the other parent with the children and each has, within their respective means and capacity, maintained the children.

“Major long term issues” is defined in Section 4 of the Family Law Act in the following terms:-
“’major long-term issues’ in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)    the child’s education (both current and future); and
(b)    the child’s religious and cultural upbringing; and
(c)     the child’s health; and
(d)    the child’s name; and
(e)     changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”
Clearly a relocation of the children to S would significantly inhibit the children’s capacity to spend time with their father and as such would constitute a major long term issue for the contemplation of the parties. It would be a particularly challenge to the parties to conceive ways in which the husband’s participation in making decisions about major long term issues in relation to the children could continue to be facilitated.

SECTION 61DA

When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The parties have agreed that the presumption should remain in place and that their children’s best interests would be served by them having equal shared parental responsibility.

SECTION 65DAA

Equal time

If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Substantial and significant time

If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)    the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)     the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In the event that I grant the wife’s application for relocation, equal time by the children with each of the parents is not only impracticable but impossible. However, in the event that relocation is not permitted, equal time is an arrangement worthy of genuine consideration. In fact the husband makes just such an application. At page 11 of the husband’s Papers for the Judge, he sets out the Orders that he seeks. A combination of paragraphs 2 and 3 is to the effect that the children would have equal time with each of the parents. It shifts the time that he presently spends with the children from weekends to a combination of weekdays and weekends. The wife is opposed to the husband’s application because the husband works each week day and she takes the view that F’s best interests would be better served in her care than in some form of child care whilst the husband works. In a year or so that will not be such a problem as F will commence at kindergarten. It will be no problem at all in a little over two years when he commences school.
Interestingly though, and in seeming contradiction to her stated reasons for opposition to equal time and her concerns about F, the wife’s own proposal is to the effect that the children will be in the care of the husband for two school days each fourth week. Her proposals to that effect are set out in paragraph 4 on pages 2 and 3 of the Minute of Proposed Orders tendered by her.
In my view the evidence supports a regime whereby the children spend equal time with each of their parents. That can only happen in the event that both of the parents are residing in Perth. It is more than a reasonably practicable arrangement. It represents the children’s best interests. As it is, the children spend 12 nights in 28 with the husband and 16 nights in 28 with the wife.
In the event that I permit the wife’s relocation with the children to S, then her proposals as to the times the children spend with the husband, in my view, on the evidence and within the context of that distant relocation, constitute substantial and significant time. The children would spend each of the short term school holidays with the husband and one-half of the Christmas school holidays.

ASSESSMENT OF THE PARTIES’ COMPETING PROPOSALS

Factors in support of relocation

The wife was born in New South Wales. People with whom the children enjoy close relationships reside in that part of the world. Her parents and grandparents reside in S in New South Wales. Other extended family members live in New South Wales and Southern Queensland.
The husband’s parents reside in New South Wales, albeit that the paternal grandfather has effectively had nothing to do with the children and the paternal grandmother is quite frail and shortly to be resident in a nursing home. It would though afford to the wife a limited opportunity to introduce the children to additional members of their extended family.
The wife’s fiancé resides and works in S. The wife and her fiancé intend to marry in January 2008.
The wife’s grandparents have offered an advance of $40,000 on her inheritance to assist in the costs associated with the children maintaining a relationship with the husband.
The wife has offered all short term school holidays and one-half of Christmas school holiday periods to the husband to spend with the children.
The husband was born in New South Wales and completed his teaching qualifications in New South Wales. As such, from 2009 the husband could secure a teaching appointment in New South Wales to be near the children.
The wife will facilitate alternative means of communication in the form of regular cards, letters, emails, SMS messages, telephone calls and webcam communication.
Relocation would recognise the wife’s right to freedom of movement.

Factors against relocation

The children were born in Perth and have lived all of their lives in Perth.
T and C have undertaken all of their schooling in Perth. T is currently in year 4 and C year 1 of their primary education. The children have thrived in their current school and in the Perth educational environment. T in particular has been identified as a talented student and has been attending a gifted student’s class since August 2007 and will likely continue in 2008 if she remains in Perth.
Members of the children’s extended family reside in Perth and they have regular contact and communication with them. The wife’s brother and the husband’s sister both reside in Perth and the children enjoy regular times spent with them. The wife has no brothers or sisters in S. Her only brother resides in Perth. He sees the children once or twice per week.
Since birth the children have seen their father every week of their lives. That has continued since separation whereby they spend 12 nights in every 28 with their father. In the event that relocation is declined my proposal is that the children spend equal time with each of their parents. Such allocations of time would not be possible if the children resided in S.
The children will miss their father. In the short to medium term T and C will be emotionally affected by that separation. For F, the adverse consequences could be long term (Kelly and Lamb (supra)). F is not yet 3 years of age. A move to S would detrimentally impact upon his capacity to bond with and attach to his father.
In a purely mathematical sense, the children will spend approximately 70 nights per annum with their father rather than 170 nights, a drop of some 60%.
The costs of maintaining regular physical contact between the husband and the children are significant and indeed could become prohibitive once the wife has expended the generous donation of $40,000 to be provided by her grandparents. The road distance is such that it would take some 6 to 7 days to drive in one direction, thereby necessitating the use of expensive air travel.
The children will be moving to an unfamiliar environment and assuming different accommodation in a different area.
The children will need to commence at a new school and make new friends. Not only will the children have to commence at a new school but T and C will have to repeat years 4 and 1 respectively of their primary education.
Only the wife will be able to be actively engaged in the children’s schooling and education. In Perth, both parents are, and will be able to continue to be, so engaged.
The husband takes an active role in the children’s extra-curricular activities. He is C’s soccer team coach. He will not be able to continue to embrace those activities if the children reside in S. Exhibit 1 details the children’s present extra-curricular activities.
The wife’s fiancé Mr N works in the agricultural industry. As I said earlier in my reasons, I am satisfied that he would have no difficulty in finding appropriate and adequately paid employment in Perth.
The children would not be able to spend any of their short term school holidays with their mother, their grandparents and other extended family members, Mr N or new found friends.

SUMMARY

As with all relocation cases, this matter is a difficult one. However, I am satisfied that the children’s best interests would be served by the children remaining in Perth, near their father and in the equal care of both of their parents. Relocation by the children with their mother to S in the State of New South Wales, would serve the wife’s best interests, but not her children’s. As the legislation dictates, whilst the interests of the wife and indeed the husband are very important, it is not so much about the parents as it is about T, C and F. Pursuant to Section 60CA, it is the best interests of the children which constitute the paramount consideration.
There are, as I have identified above, benefits to the children in moving to S. The wife could permanently commit to her relationship with Mr N without him having to move and she and the children would be closer to the maternal (and to a lesser extent paternal) grandparents and other extended family members, with whom they enjoy close relationships.
However, I am satisfied that those relationships and the increased opportunities that the children will have to enjoy those relationships, fall well short of compensating the children for the serious diminution of the critically important and very close relationship they enjoy with their father. I am satisfied that they will not be able to maintain, within the context of the factual circumstances which have existed since their birth and continuing beyond their parents’ separation, a meaningful relationship with their father.
What sets this matter apart from a number of matters which come before this Court is that the husband is not a part-time father. He has never been a part-time father. He has been and remains of equal importance and significance to the children as does the wife. I am satisfied on the evidence that the children are thriving as a consequence of the close physical and nurturing relationship they enjoy with both parents. A physical removal of the children from their mother for extended periods of their lives would not represent the children’s best interests, nor would such a physical, and hence emotional, separation from the husband. To her credit, the wife acknowledged in evidence that it would be a happier outcome for the children, and they would be happier if they could have regular weekly physical contact with both parents.
I have reviewed the alternatives which have been proposed by the wife as constituting and providing a continuing meaningful relationship between the husband and the children in the event of her move to S. I am not satisfied that her proposed arrangements do satisfy that criteria. I am not satisfied that a meaningful relationship, within the context and meaning of the circumstances of this case, can be maintained and sustained by school holiday contact and other forms of communication. These three children are used to having both of their parents physically in their lives for every week of their lives.
The impact upon F in particular would be significant. The evidence and published research suggests that there would be reduced prospects of F developing or maintaining a meaningful relationship with his father in the event that he went to live on the other side of the country with his mother and siblings.
The benefits which the children would enjoy from moving to S can quite comfortably be accommodated, as they have been in the past, by regular visits to Perth by the maternal grandparents and a move permanently to Perth by Mr N to pursue both a career and his relationship with the wife.
A re-visitation of the factors identified by me as being relevant pursuant to Section 60B and Section 60CC dictates that I cannot grant the wife’s application to relocate to S with the three children. Effectively none of the relevant objects and principles enumerated in Section 60B could be met in the event of relocation. Permitting relocation would not:-
123.1.ensure that T, C and F will have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests. (Section 60B (1)(a)). I am satisfied that a relocation to S would have the consequence effectively of only the wife having a meaningful involvement in the lives of the three children.
123.2.ensure that the children receive adequate and proper parenting to help them achieve their full potential (Section 60B(1)(c)). Removing one of their equal carers from their lives for a substantial proportion of their lives would not assist the children to achieve their full potential. In addition the requirements of the New South Wales Education Department will mean that T and C’s potential (particularly T’s) will be somewhat restrained and delayed by relocation to S.
123.3.ensure that both parents are able to fulfill their duties and meet their responsibilities concerning the children’s care, welfare and development (Section 60B(1)(d)). The husband would quite simply be unable to fulfill his duties and meet his responsibilities to his children if they were residing on the other side of the country.
123.4.afford to the children the right to know and be cared for both of their parents (Section 60B(2)(a)). Effectively, relocation to S would result in the children being cared for only by their mother. A move by the husband from almost equal full time parent to part-time holiday parent does not satisfy this object of the legislation.
123.5.recognise the children’s right to spend time on a regular basis with both of their parents and other people significant to their care, welfare and development (such as grandparents and other relatives) (Section 60B(2)(b)). I am satisfied that the wife’s proposals in the event of a move to S would adequately ensure that the children were able to communicate on a regular basis with their father but within the context of how their lives have been structured since birth and further since separation, a relocation to S would not recognise the children’s right to spend time on the regular basis with their father that they have been or on any substituted basis that would represent their best interests.
123.6.enable the husband to jointly share duties and responsibilities concerning the care, welfare and development of his three children (Section 60B(2)(c)). The husband is presently sharing almost equally those duties and responsibilities. It has been a significant factor in the care, welfare and development of the three children. A move by the children to S would in no sense represent an arrangement which enables the husband to jointly share those duties and responsibilities in any meaningful sense.
In short, refusing the wife’s application to relocate to S in the State of New South Wales, best meets the children’s needs. Declining the wife’s application better recognises the children’s best interests. A relocation to S would not do either.

PROPERTY SETTLEMENT

Assets, liabilities and superannuation entitlements

The parties were able to agree their assets, liabilities and superannuation entitlements. They tendered to me a handwritten sheet described as “ASSETS / LIABILITIES SCHEDULE” in which they identified the net assets including superannuation benefits, as being $555,565. However, that is not the correct figure. Counsel have transposed a couple of numbers in relation to the liabilities. The liabilities are in fact a figure of $264,188, not $246,188. Thus the agreed assets and liabilities are as follows:-
Assets
125.1.House property at D  $610,000.00
125.2.Furniture and effects in husband’s possession             $10,700.00
125.3.Boat in husband’s possession  $8,500.00
125.4.Cash at bank (husband)  $5,000.00
125.5.Furniture and effects in wife’s possession  $6,000.00
125.6.Jewellery in wife’s possession  $3,000.00
125.7.Hyundai motor vehicle in wife’s possession                  $4,900.00
Sub-total  $648,100.00
Less Liabilities
125.8.Mortgage (D property)                $235,000.00
125.9.ANZ overdraft  $486.00
125.10.Credit card (joint)  $2,502.00
125.11.ANZ personal loan (husband)        $20,000.00
125.12.Family loans (wife)  $6,200.00          $264,188.00
Sub-total  $383,912.00
Add Superannuation
125.13.Husband  $106,770.00
125.14.Wife  $46,883.00          $153,653.00
Net total  $537,565.00

Neither party is seeking a splitting order in relation to the superannuation benefits. They are content for me to treat them as part of the asset pool.
The husband drives a Hyundai Santa Fe motor vehicle. It is mentioned in the Minutes of Order proposed by the wife. She proposes that he retain it. Other documents filed suggest it has a nil equity and hence can be excluded from the asset pool.

CONTRIBUTIONS

The parties were also able to agree that their contributions ought to be recognised by a division of 52.5% / 47.5% in favour of the husband.

SECTION 75(2) FACTORS

The parties were not though able to agree what was an appropriate adjustment for Section 75(2) factors. Realistically, they would have needed to have agreed the children’s issues to be able to accurately quantify Section 75(2) factors. I turn now, as I am obliged to do by Section 79(4)(3), to the factors enumerated in Section 75(2).

(a)the age and state of health of each of the parties;

Both parties are relatively young and both enjoy good health.

(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

The husband’s income is presently significantly greater than that of the wife. In his Financial Statement filed on 7 June 2007 he states his gross weekly income as $1,384 which equates to $71,968 per annum. At paragraph 34 of his affidavit filed on 10 October 2007, he states his income as $70,000 per annum plus superannuation at 9% of salary, representing a further payment of approximately $6,300 into his superannuation account. In his oral evidence the husband said that his income without salary sacrifice was in the order of $65,000 per annum. With salary sacrifice he received an amount of some $56,000 per annum.
By comparison, the wife’s Financial Statement filed on 7 June 2007, discloses an income from her own exertion of some $11,000 per annum. In addition, she receives Centrelink and child support payments. From all of those sources she receives a total annual income of approximately $36,750.
The husband has a significantly superior income to that of the wife. I am further satisfied that he has a greater capacity for appropriate gainful employment than does the wife. In his affidavit the husband made some point about the wife having a greater capacity to earn than she presently exhibits. On the evidence I am satisfied that she would have the capacity to earn a little more but it will always be the case that the husband earns significantly more than the wife.
After considering matters of contribution only, the husband will receive a slightly greater proportion of the total assets and resources of the parties, than the wife. The differential is some 5% which is represented by a figure of some $27,000.
I will deal with superannuation issues a little later in these reasons.

(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

Since separation the wife has undertaken a greater parenting role with respect to the children, but not significantly so. The children spend four nights per week with their mother and three nights per week with their father.
However, as a consequence of my determination that the children should spend equal time with each of their parents, clearly the parental responsibilities of the parties will be evenly divided.

(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;

and

(e)the responsibilities of either party to support any other person;

No relevant matters emerge for my consideration pursuant to these sub-sections.

(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party;

The Financial Statements and affidavits filed by the parties and previously referred to, disclose that each of the parties receives Centrelink payments in the form of family tax benefits, the wife in the amount of $362 per week and the husband in the amount of $97.50 per week. There will likely be some adjustments in favour of the husband consequent upon my decision that the children should spend equal time with each of their parents.
Each of the parties has an ultimate entitlement to superannuation benefits, the husband in the present amount of $106,770 and the wife in the current amount of $46,883. Thus the husband has an entitlement to superannuation benefits of more than twice that of the wife.
However, as was pointed out by his Counsel, the husband is in no position to receive those superannuation entitlements for many years yet, something in the order of 10 to 15 years. However, neither is the wife entitled to receive her significant benefits for many years. Indeed, she will have to wait longer to receive the fruits of her superannuation benefits as she is some 8 years younger than the husband. She will have to wait in the order of 20 to 25 years.

(g)where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

and

(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

and

(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

and

(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

No additional matters of relevance emerge for my consideration pursuant to these sub-sections.

(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

The parties cohabited for some 12 years. The agreed domestic and parental role undertaken by the wife during the period of cohabitation has impacted detrimentally upon her capacity to earn. She will have some additional limited opportunities to earn more once the new parenting regime is in place and as the children grow older.

(l)the need to protect a party who wishes to continue that party's role as a parent;

This sub-section is not relevant to these proceedings.

(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;

The wife is not yet cohabiting with Mr N. However, she makes no secret of her desire to do so. They plan to marry in January 2008. Despite my determination that the wife should not be permitted to relocate to S with the children, I am satisfied that the relationship between the wife and Mr N is strong and that he will move to Perth to join her.
Mr N said in evidence that he his present taxable income is $63,000 per annum. He runs his own business. He is contracted to a Sporting Club. I accept his evidence that in the event of his move to Perth, he will not be able to command that sort of income initially and will likely find work at a salary between $30,000 and $40,000 per annum. He acknowledged though that it will not take him long to acquire any necessary additional job skills and qualifications to see him improve his income bracket. He does not own any real estate but has money in the bank, some shares, two motor vehicles and a business which in total I accept would be worth in the order of $120,000.

(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party;

As I stated earlier, there would be a differential in the distribution of property between the parties after consideration of Section 79 factors alone, in the order of $27,000.

(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;

The husband has always paid the full amount of child support required of him by application of the relevant formula. He is presently paying $135 per week. He admitted in evidence that the child support that he pays is calculated on the amount he receives after salary sacrifice, namely an amount of $56,000 per annum and not the full amount of his package being some $70,000.

The effect of the orders I propose to make in relation to the children spending equal time with each of their parents, will almost certainly result in the husband’s child support commitments being somewhat less.

(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

and

(p) the terms of any financial agreement that is binding on the parties.

No additional relevant matters require my consideration pursuant to these sub-sections.

FINDING ON SECTION 75(2) FACTORS

Pursuant to the Orders I propose to make, the husband will bear responsibility for the care of the children for an additional night per fortnight, and the wife’s role in that respect will be diminished by one night per fortnight. Thus parental responsibilities on a daily practical basis will be shifted slightly towards the husband.
Further, the share of the property to be retained by the husband will bear a larger component of superannuation entitlements than will the wife’s. Those entitlements cannot be accessed for some years yet, although the husband can gain the benefit of his superannuation entitlements at a far earlier stage than can the wife secure hers.
However, in my view, those factors which favour the husband are outweighed by the differential in their respective financial circumstances. The wife earns significantly less, and the evidence indicates, will continue to do so into the foreseeable future. It will be some time before she gains additional support from Mr N, and in any event he will for a time be operating on a lesser income than is presently the case. The wife’s Centrelink and child support payments will probably be reduced. I am satisfied that the husband’s income will continue to grow in his secure occupation as a teacher. The differential in income between the two parties will constitute a significant amount by the time that the children attain majority. In the case of F, it will be some 15 years before he attains his majority.
I am satisfied that, after a consideration of Section 75(2) factors, there should be a further adjustment in favour of the wife of 7.5%. Thus the assets of the parties should be divided on the basis of 55% to the wife and 45% to the husband.

JUST AND EQUITABLE

As identified by me earlier in these reasons (paragraph 125), the parties’ net worth is represented by assets and superannuation entitlements to the value of $537,565. The effect of my decision is that the wife is to receive 55% of that net pool, which is represented by a figure of $295,661. The husband will thus receive 45% of the pool which is indicated by a figure of $241,904.
The wife is to retain the following:-
155.1.Furniture and effects  $6,000.00
155.2.Jewellery  $3,000.00
155.3.Hyundai motor vehicle  $4,900.00
155.4.Superannuation entitlements  $46,883.00
155.5.Total  $60,783.00
She will though be responsible for family loans in the amount of $6,200, thereby reducing the net value of the assets and superannuation to be retained by her, to a figure of $54,583.
As the wife is to receive a net benefit representing 55% of the net pool of assets of $295,661, there is a payment due by the husband to the wife of $241,078.
For his part the husband will retain:-
158.1.House at D  $610,000.00
158.2.Furniture and effects  $10,700.00
158.3.Boat  $8,500.00
158.4.Cash at bank  $5,000.00
158.5.Superannuation entitlements  $106,770.00
158.6.Total  $740,970.00
The husband though will bear responsibility for the following liabilities:-
159.1.Mortgage  $235,000.00
159.2.ANZ overdraft  $486.00
159.3.Joint credit card debt  $2,502.00
159.4.ANZ personal loan  $20,000.00
159.5.Total  $257,988.00
Thus the net assets and superannuation entitlements to be retained by the husband amount to $482,982. In addition he is required to make a payment to the wife of $241,078, thereby reducing the net benefit to him from the property settlement to a figure of $241,904. That figure represents the 45% calculated by me as being his entitlement.
In my view that represents a just and equitable outcome in these proceedings. Whilst the husband will not be able to gain access to his superannuation entitlements for some time yet, neither will the wife. In fact the wife will not be able to secure her entitlements until much later than the husband.
The monetary difference in their respective entitlements is $53,757. The husband has the superior income and will continue to do so into the foreseeable future.
There is significant equity still in the former matrimonial home property against which the husband could borrow if that is his desire. Alternatively, if he is required to sell the property to raise the money, or indeed chooses to do so, he will still have a significant deposit that he would be able to place on a new purchase.
Conversely, the wife, with her more limited income, will need the cash payment required of the husband in order to secure suitable accommodation for herself and the children who will be with her for 50% of the time.

PROPOSED ORDERS

I set out below the Orders I propose making in this matter. I will give the parties 7 days to speak to the proposed Orders in the event that they wish to agree a different form of the Orders which will nonetheless reflect my findings. In the event that the parties do not exercise that liberty, the proposed Orders will become final Orders at 4.00 pm on Tuesday 18 December 2007.

I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr

Associate

Date: 11 December 2007

[2007] FamCA 1696

11 December 2007

Key Legal Topics

Areas of Law

Family Law

Property Law