Wynne and Oliver

[2012] FamCA 484

FAMILY COURT OF AUSTRALIA

WYNNE & OLIVER [2012] FamCA 484

FAMILY LAW – CHILDREN – Significant change to the place of residence of a child – Where the mother proposes to relocate to New Zealand with the child.

Family Law Act 1975 (Cth)

Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458
Cowley & Mendoza (2010) FamCA 436
Goode v Goode (2006) FLC 93-286)
MRR v GR (2010) 240 CLR 461
Taylor v Barker (2008) 37 FamLR 461
U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36

APPLICANT: Ms Wynne

RESPONDENT: Mr Oliver

FILE NUMBER: SYC 5567 of 2008

DATE DELIVERED: 8 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 20 & 21 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITOR FOR THE APPLICANT: Paul & Paul Lawyers

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Delaney Lawyers

Orders

1. That the consent orders made on 10 March 2010 are varied so as to provide additionally:

   2(a)That the mother do all things necessary to ensure that F lives within a 20 kilometre radius of the Sydney central business district, unless otherwise agreed in writing by the parties.

2. That, otherwise, all applications and responses herein are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5567 of 2008

Ms Wynne

Applicant

And

Mr Oliver

Respondent

REASONS FOR JUDGMENT

proceedings

1. Ms Wynne (“the mother”) and Mr Oliver (“the father”) are the parents of a little girl, F, who was born in February 2005 and is now seven years old.  To date they have negotiated arrangements for the care of their daughter.  Their present difficulties arose due to the mother’s wish to relocate with F to New Zealand.  The father strongly resists any proposal for the mother to remove F from the Sydney metropolitan area.

background

1. The father was born in August 1968 and is now 43 years old.  The mother was born in 1970 and is presently 41 years of age.  They commenced a relationship in England in 2003 and began to live together in April or May 2004.

2. F was born in England, where she lived with both of her parents until 14 December 2005.  She and the mother then came to Australia.  The father remained in England until May 2006, for reasons which were in dispute but have no particular relevance for present purposes.

3. When the mother and F came to Australia they lived in Queensland with the maternal grandparents.  The father stayed with them in Queensland between 16 December 2005 and 2 January 2006.  The paternal grandparents joined the maternal family in Queensland for Christmas in 2005.

4. In June 2006 the father, the mother and F settled in Sydney.  Unfortunately the parents’ relationship soon broke down and the mother and F moved into separate accommodation in September 2006.

5. The mother commenced employment with Company C in September 2006 and negotiated a four day working week.  F attended day care while the mother was at work.

6. F began to spend overnight time with the father in approximately November 2006.  From that time she spent an average of approximately five nights per fortnight in the care of the father.

7. In July 2008 the mother commenced a relationship with her present partner, Mr M, who was then a resident of New Zealand.  Mr M moved to Sydney in January 2009 and took on employment with Company A as an executive.  Mr M and the mother began to live together in April/May 2010.

8. In October 2008 the father filed an application for parenting orders.  On 19 November 2008 the parties consented to interim orders, to the effect that F live with the mother and spend time with the father every alternate weekend from Friday evening until Sunday afternoon and each Wednesday night.

9. In May 2009 the father commenced a relationship with Ms S.  They began to live together in October 2009 and married in November 2010.  In July 2010 they purchased a home at P Street, Suburb G.

10. On 10 March 2010 the parties consented to final orders, which included a provision for equal shared parental responsibility.  These orders provided that F live with the mother and spend time with the father during term time in a two week cycle and for half of all school holidays.  In week one F spends time with the father on Wednesday night and each alternate weekend from Friday afternoon until Sunday evening.  In week two she spends time with the father from Wednesday afternoon until Friday morning.  These orders also provide that F spends time with each parent on special occasions.

11. After the parties’ separation the mother began to consult Dr J, a clinical psychologist, whom she continued to see until late 2008.  In a letter dated 5 November 2011, which was annexed to her affidavit sworn on 2 December 2011, Dr J wrote:

    [The mother] first came to see me 2 years ago to seek assistance in the management of her stress levels associated with co-parenting with [F’s] father, [Mr Oliver].  [The mother] saw me over a 12 month period at that time.

    In recent months [the mother] has returned to therapy.  This time it has been due to her reported low level of mood and stress regarding the impending proceedings.

    Dr J prepared two reports and gave oral evidence in the mother’s case.

12. In July 2010 Mr M was informed that he no longer held a secure position with Company A and his employment was terminated in December 2010.  He received a redundancy package of approximately $180,000.00, which he used to reduce a mortgage debt on a property in New Zealand.  His contract with Company A prevented him from seeking employment in the same industry in Australia for six months.

13. Mr M secured employment with Company V in New Zealand in February 2011.  When he returned to New Zealand in January 2011 the mother and F moved into rented accommodation at Suburb R.  In June 2011 they began to live in the mother’s home at Suburb B, which had previously been leased to tenants.

14. In July 2011 a child, H, was born to the father and Ms S.  F and H live together whenever she spends time with the father pursuant to the current orders.

15. In October 2011 the mother resigned from her employment.  She has not engaged in paid work since December 2011.

16. Mr M has two children of a previous relationship, who live in New Zealand.  His daughters, D and E, were five and three years old when the mother swore her affidavit on 26 October 2011.

the proposals of the parties

1. The mother proposed that she and F live in Auckland, New Zealand, with Mr M.  F would spend time with the father in New Zealand on three occasions of three days and nights per term and one weekend in Sydney.  She would also spend time with the father for half of the terms two and four school holidays and the whole of the other school vacations.  F and the father would spend time together on special occasions, if they are in the same country.

2. The mother proposed that she pay the cost of F’s air travel for the purposes of her spending one weekend and school holiday time with the father in Sydney.  She was prepared to meet half of his costs of travel to and accommodation in New Zealand.

3. The mother made no proposal to relocate to New Zealand without F.  In her affidavit she deposed:

   144.If [F] is not permitted to move to New Zealand I have considered what I would do.  If the Court was to make the unfortunate and devastating decision that [F] would not be permitted to move to New Zealand it’s unlikely that I will move.  This has been a very difficult issue for me to think about however as I said to the family consultant in April, it’s in [F’s] best interest to have the benefit of me being her primary carer as I have always been … .

4. The mother’s proposed orders did not address the possibility that she and F will remain in Sydney.  In these circumstances, I can only infer that she proposes no change to the current arrangements.

5. The father sought an order that the mother’s application be dismissed on the authority of Rice v Asplund [1978] 6 FamLR 70. His Counsel set out the reasons in his case outline and summarised the argument orally as follows:

   When the orders were made in March 2010 the mother must have understood the risk that [Mr M] may not have been a permanent resident of Australia.

6. Both the mother and Mr M deposed in their affidavits that they had no reason in March 2010 to contemplate that his employment with Company A might be terminated.  They were not shaken in cross-examination on this evidence.

7. In my view, the termination of Mr M’s employment with Company A and his return to New Zealand constitute a sufficient change in circumstances to warrant a reconsideration of parenting arrangements for F.  Whether Mr M could have taken effective steps to remain in Australia is a separate issue, which I will consider in due course.

8. In the event that the mother and F remain in Australia, the father proposed only one variation to the current arrangements.  He sought an order:

   That [F] live within 20 kilometres radius of the central business district of Sydney unless otherwise agreement in writing between the parties.

9. In the event that the mother resides in New Zealand, the father proposed that F live with him.  She would spend time with the mother in New Zealand for one weekend per term until she turns eight years of age, when visits would be extended to once per calendar month.  The mother would be at liberty to spend time with F in Australia for one period per term of up to four consecutive nights.  F would spend two-thirds of the short school holidays and four weeks during the Christmas vacation with the mother in New Zealand.  The father sought that he and the mother share the cost of F’s flights to New Zealand and that she be responsible for her own travel expenses to Australia.

10. If F lives with the mother in New Zealand, the father proposed the converse of the arrangements which he suggested in the event that the mother lives in New Zealand and he and F reside in Sydney.  If he lives in Sydney and the mother in New Zealand, he proposed communication by skype regardless of F’s place of residence.

11. The father made no proposal to relocate, in the event that F lives in New Zealand with the mother.  He explained his reasons to the Family Consultant as follows:

    With regard to the possibility of [the father] and his wife also relocating to New Zealand, [the father] stated that many of the issues for [F] remain the same, in that it would remove her from the structures that already exist for her in Australia and move her further away from extended family.  [The father] also pointed out that such a move would also move him away from his family, and his wife away from the support of her family (which he also does not view as being a good thing for his new baby), and into an environment in which they would know nobody.  Further to this, he raised an issue about the size of the New Zealand job market in comparison to that of Australia.

12. The mother sought an order that the parties have equal shared parental responsibility for F.  The father’s minute of proposed orders were silent on this question but I infer that he took the same position, as the consent orders of 2 March 2010 contained this provision.  As noted above, the father sought only one change to these orders in the event that the mother and F remain in Australia.

approach to these proceedings

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) provides that the objects of Part VII are to ensure that the best interests of children are met and sets out how that purpose is to be achieved (s.60B(i)); the principles which underlie these objects (s.60B(2)) and bestows a specific right in an Aboriginal or Torres Strait Islander child to enjoy his or her culture (s.60B(3)).

2. Section 60B provides:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

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

3. Section 60CA provides that, in deciding whether to make a particular parenting order, the Court must regard the best interests of a child as the paramount consideration. Section 60CC sets out two primary and 13 additional considerations to which the Court is required to have regard when determining what orders are in a child’s best interests. Section 60CC(4) requires the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in specified respects. The Court must consider the extent to which a parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to a child and to spend time and communicate with a child. The Court must also consider the extent to which a parent has facilitated, or failed to facilitate, the other parent making long-term decisions and spending time and communicating with a child. I will set out and refer specifically to the primary and additional considerations below in these reasons.

4. Section 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.  Section 61DA(2) provides that this presumption will not apply if there are reasonable grounds for the Court to believe that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence or abuse of the child or another child who is a member of the parent’s family.  Section 61DA(3) provides that this presumption may be rebutted by evidence which satisfies the Court that it is not in a child’s best interest for his or her parents to have equal shared parental responsibility.

5. Section 65D of the Act contains the Court’s power to make a parenting order. This section provides:

   (1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

6. An order for a child’s parents to have equal shared parental responsibility carries consequences which are set out in sub-ss 65DAA(1) and (2).  In these circumstances the Court must consider whether it is in a child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent.  If there is an order for equal shared parental responsibility and no provision for a child to spend equal time with each parent, the Court is obliged to consider whether it is in his or her best interests, and reasonably practicable, for the child to spend substantial and significant time with each parent.

7. There is no temporal definition of “substantial and significant time” in the Act. Section 65DAA(3) sets out requirements for a parenting arrangement to fulfil this definition. It is necessary for a child to spend time with a parent on weekends, holidays and at other times; that a parent is able to be involved in the child’s daily routine and events which are of particular significance to the child and that the child is able to be involved in events which are of special significance to a parent. The Court is permitted to take into account additional matters in determining whether the time which a child spends with a parent is “substantial and significant”:  s.65DAA(4).

8. The concept of “reasonable practicability” is considered in s.65DAA(5) of the Act. The Court is required to take into account certain matters when determining whether it is “reasonably practicable” for a child to spend equal or substantial and significant time with each parent.  These matters include, but are not limited to, the distance between the parents’ homes; the parents’ current and future capacity to implement an equal or substantial and significant time arrangement; the parents’ current and future capacity to communicate and resolve difficulties and the impact of such an arrangement on the child.  

9. In Taylor v Barker (2008) 37 FamLR 461 the Full Court (Bryant CJ and Finn J) considered the proper approach to cases which involve a proposal by one party to make a significant change to the place of residence of a child. Their Honours said, inter alia:

   (i)When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:

   U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36; Bolitho v Cohen(2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458, applied.

   (ii)There was no substance in the argument that the magistrate had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue. 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, such a proposal now also needs to be considered in the context of s.5DAA. 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 subs (2) (primary considerations) and subs (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.

   (v)The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in “substantial and significant time” (or for that matter in “equal time”), the magistrate had then turned to consider the “reasonable practicability” of such an arrangement, some assistance would have been gained from s.65DAA(5). A consideration of these matters would have required the magistrate to evaluate the differing proposals of the mother and father and to consider whether “substantial and significant time” would be “reasonably practicable” if the mother were to relocate to Queensland. This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, it was not possible to conclude that the magistrate’s decision was incorrectly reached.

   (vi)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.

1. In MRR v GR (2010) 240 CLR 461 the High Court said:

   9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n 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.

2. The High Court said further in MRR v GR (2010) 240 CLR 461:

   13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that

   it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist (18). If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

3. The High Court held further:

   15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under

   s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

4. In Cowley & Mendoza (2010) FamCA 436 at [41], Murphy J summarised the relevant principles as follows:

   41.The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286), would, then, appear to me to require a court contemplating the making of parenting orders to:

   ·First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;

   ·Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;

   ·Further or alternatively, then make findings, by reference to s.60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;

   ·Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;

   ·If the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s.65D; s.60CA; s.65AA).  (As the Full Court put it in Goode, the enquiry about best interests is “at large”);

   ·If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s.65DAA) then proceed to:

   oMake findings as to whether the subject children’s best interests are best met by an order for equal time; and

   oMake findings as to the matters prescribed in s.65DAA(5), and, as a result;

   oMake findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and

   oIf it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s.65DAA(3)) should be made;

   ·If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s.65D; s.60CA; s.65AA).

   I respectfully agree with his Honour’s analysis, which I will apply in these reasons.

THE EVIDENCE AND WITNESSES

1. The applicant mother relied on the following affidavits:

   1.        Ms Wynne (the mother) sworn on 26 October 2011

   2.        Mr M (the mother’s partner) sworn on 28 October 2011

   3.Dr J (the mother’s psychologist) sworn on 2 December 2011 and 13 February 2012.

   The mother and both of her witnesses were required for cross-examination. 

2. The respondent father relied on the following affidavits:

   1.Mr Oliver (the father) sworn on 28 October 2011 and 31 January 2012

   2.Ms S (the father’s wife) sworn on 26 October 2011 and 31 January 2012

   3.        Ms I (the paternal grandmother) sworn on 22 August 2011

   4.        Ms K (the father’s mother-in-law) sworn on 5 October 2011

   5.        Ms L (the father’s sister-in-law) sworn on 30 August 2011.

   Ms I, Ms K and Ms L were not required for cross-examination.  The father and Ms S gave oral evidence. 

3. I had the benefit of a Family Report dated 5 August 2011 by Ms N, who also gave oral evidence.  I found the evidence of the Family Consultant to be persuasive and of considerable assistance.  I digress to record that I agree with her impression that “all adults interviewed presented as personable and articulate”.  In making this observation, the Family Consultant referred to the parents, Mr M and Ms S.

THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY

1. These proceedings will result in the making of parenting orders in respect of the child F.  Consequently I am required to apply a presumption that it is in F’s best interests for her mother and father to have equal shared parental responsibility.  As noted, the mother specifically sought an order for equal shared parental responsibility and, in my view, the father implicitly adopted the same position. 

2. There was no suggestion whatsoever that either parent has engaged in family violence or abuse of F.  I have no difficulty in concurring with the Family Consultant’s assessment that the mother and father “presented as loving and committed parents”.  They have successfully cared for F in an equal shared parental responsibility regime for approximately six years.  There was nothing in the evidence which suggested that it would be contrary to F’s best interests for her mother and father to have equal shared parental responsibility, hence the presumption was not rebutted.

3. In these circumstances I am satisfied and find that it is in F’s best interests that her mother and father continue to have equal shared parental responsibility and I will make such an order. Consequently I am required to consider whether it is in F’s best interests, and reasonably practical, that she spend equal time with each of her parents. I will carry out this process by reference, inter alia, to the considerations set out in s.60CC of the Act.

F’S BEST INTERESTS: SECTION 60CC CONSIDERATIONS

The Primary Considerations: Section 60CC(2)

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents; and

Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The two primary considerations can be dealt with in relatively short compass, in light of the quality of care which the mother and father both offer to their daughter.  The same observation can be made in relation to Mr M and Ms S.  I have little or no doubt that the proposed relocation is the only reason that these parents are embroiled in the current litigation.

2. The Family Consultant opined in her report:

   7.[The mother] (aged 40 years) and [the father] (aged 42 years) presented as loving and committed parents.  Neither raised any issues about the other’s parenting capacity or about [F’s] relationship with either of them or anyone else.  Both of her parents consider [F] to feel ‘comfortable in her situation’ ([the father]) and to ‘enjoy the benefits of [her] two families’ ([the mother]).  [The mother] and [the father] seemed to feel that they had reached a point in their post-separation relationship of being able to work cooperatively as parents, although this has been strained by their current disagreement about relocation.

3. As noted, there was no evidence whatsoever to suggest a need to protect F from abuse, neglect or family violence.  In my view she currently enjoys a meaningful relationship with each of her parents and would continue to benefit from her mother and father’s love, support and significant input into her life in the future.

   The Additional Considerations:

   Section 60CC(3)(a):any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

4. The Family Consultant interviewed F on 20 April 2011, when she was just over six years of age.  She reported: 

   29.[F] told the Family Consultant that, at the end of the year, she and her mother would be going to live in New Zealand.  She said that they would be living in a ‘beach house’, from which they could walk to the beach ([name of the beach]) and that she would have her own room with a TV in it.  [F] thought that she might miss some of her friends, like her ‘best friend [Z]’, but that ‘the good thing is [that she] is going to make new friends’.  She said that she would only get to see her father on school holidays and that, as she has not yet experienced this, she does not know what this would be like (although she thinks she might miss him).

5. The Family Consultant considered that F’s level of maturity was such that she could not have any realistic understanding of the impact on her life of a relocation to New Zealand.  She opined:

   36.[F] anticipates that she will move to New Zealand with her mother and she painted a positive picture of living there.  Whilst elements of the life she anticipates living in New Zealand would be likely to appeal to a child her age, she is too young to have any real appreciation of what the transition might actually feel like or what it might mean to live so far away from her father,  stepmother and impending sibling..

   I have no reason to question this opinion of the Family Consultant.

6. The mother deposed to comments made by F to her, and others in her presence, on the subject of the proposed relocation.  She said in her affidavit:

   59.Since [Mr M] has moved [F] has made comments to me as follows:

   ‘Mummy, when are we moving with [Mr M]?’ and ‘I want to see [Mr M].  Why can’t he spend some more time here?’ and “when are we moving to New Zealand?’.

   60.[F] continually asks ‘when are we moving to be with [Mr M]?’.  She has said this a number of times since [Mr M] moved to New Zealand…

   61.I have heard [F] tell her family and friends ‘we are moving to New Zealand’.  On Saturday 10 September 2011 [F’s] friend [Z] and her mother came to collect [F] for a sleepover.  [Z] was excitedly telling us that they are moving house and she would not be back at [School O] next year.  [F] said ‘that’s okay.  I can come to visit you when I come back from New Zealand to see my dad.  We can still have sleepovers.

   I have no reason to doubt that F in fact made these statements to or in the hearing of the mother.

7. For two reasons, however, I do not accept that these statements reflect a genuine, reality-based wish on the part of F to move to New Zealand.  Firstly, I agree with the Family Consultant’s assessment that no significant weight should be attached to her stated wishes.  F is only seven years old and a rosy picture of life in New Zealand has clearly been offered to her.  For example, she spoke to the Family Consultant of living in a beach house and having her own room equipped with a television set.  The uncontradicted evidence of Ms S was that F said to her in late January 2012:

   Mummy said I could get a chihuaha or other dog if we move to New Zealand.

8. My second reservation arises from F’s exposure to the mother’s unhappiness at being separated from Mr M.  The mother’s own affidavit evidence was as follows:

   64.When [Mr M] said ‘I will have to relocate to New Zealand in January 2011’, I found myself bursting into tears for no apparent reason.  I did this two or three times a week.  Despite my attempts to control these outbursts, they have occurred on occasion in front of [F].  This in itself worsens my anxiety, because all I want is for [F] to be happy.  She says to me ‘Mummy why are you crying?’ or ‘why are you sad Mummy?’.

9. It seems to me to be a reasonable inference that F is aware that her mother is unhappy at her separation from Mr M and wishes to move to New Zealand to be with him.  I do not attach significant weight to her statements in favour of a move to New Zealand for that reason and her young age.

10. The mother gave evidence of a conversation with F which indicated that Ms S discussed the proposed move with the child.  She deposed:

    60.…we discussed her riding to school one day on a bike and she asked if she would be able to ride to school if we were in New Zealand.  I said ‘when you are old enough you can ride to school’.  [F] went on to say ‘[Ms S] said holidays are not enough and she would miss me’.  I said ‘Darling I would never stop you seeing your daddy and [Ms S].  They love you very much as do [Mr M] and I.’  I then said ‘whatever happens, you will always have fun’.  [F] said ‘[Ms S] said it is not enough and she and [H] will miss me, but I am not allowed to talk about it’….

11. Ms S disputed the mother’s version of her conversation with F and denied that she told her to keep the discussion secret.  Ms S deposed that this conversation occurred in October 2011:

    I refer to paragraph 60 of [the mother’s] affidavit filed 27 October 2011.  I deny the conversation attributed to me by [the mother].  I have never and would never suggest [F] keep secrets from her mother.  The conversation was as described below.  In or about October 2011 while I was sorting family washing [F] said to me in words to the effect:

    [F]: ‘I wish we had a maid’

    [Ms S]:  ‘Only people who are rich have maids and don’t have to work’

    [F]:  ‘We are rich”

    [Ms S]:   ‘Not really sweetheart, we are okay but we are not rich.  We are lucky though.’

    [F]:  ‘If we go to New Zealand Mummy won’t work – or she might just work at my school’

    [Ms S]:  ‘Sweetheart nothing has been decided about New Zealand yet.  The adults will work it out’

    [F]:  ‘I know.  If I do go I could send postcards and visit’

    [Ms S]:  ‘Well [F], yes you could but it would be very different.  Daddy, [H] and I would miss you.  Do you think you would miss us?’

    [F]:  ‘Mummy said I could live with you and Daddy’

    [Ms S]:  ‘You are always most welcome to stay with us sweetheart.  What do you think that would be like?’

    [F]:  ‘I think I would miss Mummy.  I just want Mummy to stay in Sydney.  I want to spend time with all my family.  I want to see all of you.’

    At this point I observed [F] had tears in her eyes.

    [Ms S]:  ‘Oh Darling, have you been worrying about this?’

    [F] nodded when I asked her this.

    [Ms S]:  ‘I am so sorry you have been worrying.  I think it will all work out okay’

    [F]:  ‘I would like to stay here so I can see all of you and I would also like to go to New Zealand so I can go to the […] beach’

    [Ms S]:  ‘Oh sweetheart, any time you are worrying you know you can talk to Daddy or I.  I love you very much [F]’.

12. In cross-examination Ms S, who is a mental health professional, was asked about the appropriateness of this conversation with F.  Initially she said that she considered the conversation to be appropriate but then conceded: 

    I suppose it could be read as [F] being put under pressure – I did not see any evidence of that actually.  I was really trying to gauge how she felt about living with us.  I did not think I was inappropriately involving [F].

    In my view, it would have been preferable that F had been spared this conversation.  I take the same view of any discussions which the mother has had with F involving promises about life in New Zealand or her own wish to relocate to be with Mr M.

13. The father deposed to these statements made by F to him concerning the proposed move to New Zealand:

    “81.Throughout late 2010 and into 2011 I was very concerned about a number of statements [F] was making about New Zealand.  It appeared to me that [the mother] was inappropriately discussing the proposed relocation to New Zealand with [F].

    82.By way of example, in August 2010 [F] said to me:  ‘Daddy makes it hard for Mummy’.  When I asked [F] who said that she said ‘Mummy’.  I explained to [F] that this is not true and that I loved her ([F]) and wanted the best for her. 

    83.Whilst on 5 September 2011 (whilst attending the football with myself and [Ms S]), [F] asked:  ‘how would you feel if Mummy took me away?’  I replied that I would be very upset. 

    84.This culminated on 17 February 2011 when [F] became extremely distressed.  During this time [F] made the following statements:

    ‘i.Daddy when I go to live in New Zealand I can come back and visit, and you can come visit me.’  When I asked why she said this she said, ‘you must promise not to tell Mummy’.

    ii.‘When I am at school or with you who looks after Mummy?  Mummy says she sits at home waiting and she has no company’.  I replied ‘Mummy isn’t at home while you are at school she is at work’.  [F] replied ‘sometimes she stays at home with no company.  Mummy has no-one to look after her so I must look after her.’ 

    iii.‘When I go to New Zealand I will get a room of my own with Foxtel in it so I can watch TV in bed.’

    iv.       ‘We will be moving at Christmas.’

    v.        ‘I will get a new school by the beach.’

    vi.       ‘Mummy will work in the school.’

    vii.‘Mummy said [Mr M] can never come back to Australia, not even for a visit.  [The companies in Mr M’s field of work] won’t let him because he knows too much about [that field].’”

14. I find that F’s stated views should carry little weight for reasons to which I have referred.  This consideration thus plays no significant role in the outcome of these proceedings.

    Section 60CC(3)(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);

1. The Family Consultant reported that

   [F] had positive and affectionate things to say about each of her parents, as well as about ‘[Mr M]’ and ‘[Ms S]’.  Her description of her family included the members of three extended families, (maternal, paternal and step-maternal), as well as her mother, ‘[Mr M]’ and his two children and her father, ‘[Ms S]’ and the coming baby.

   It is thus readily apparent, and I find, that F enjoys a secure, warm and loving relationship with both of her parents and their partners.  I have no reason to doubt that she enjoys a good relationship with her extended families, including her maternal and paternal grandparents, and the relatives of Ms S.

2. The father and Ms S both gave unchallenged evidence to the effect that F is developing a strong attachment to her baby sister H.  Since H’s birth in July 2011 she and F have spent five nights per fortnight and school holiday periods together in the care of the father and Ms S.

3. The father and Ms S both gave uncontradicted evidence of F’s eagerness to spend time with H and concern for her.  The father deposed:

   22.… when I pick [F] up from school she has greeted me with the words:

   ‘[H], [H], [H], I want to see [H]’

   And

   26.     … in about August 2011 she said to me:

   ‘Daddy when [H] gets older perhaps she can come to [School O] (Public School – [F’s] school) and I can look after her and take care of her.

4. Ms S deposed:

   12.[F] appears to be very excited about having a baby sister.  For instance she told me in mid August 2011:

   ‘[H] is so cute.  She can have all my toys when she is older, even [T]”

   [T] is her favourite soft toy, a lamb, my parents brought her back from a holiday.

   13.I have observed that [H] has become an important part of [F’s] life.  I have witnessed on numerous occasions that upon her return to our house [F] rushes into the house and immediately requests:

   ‘Where is [H]?  Can I go and see her?’

   14.On occasions when I change [H’s] nappy [F] enjoys being involved.  I recall on one occasion whilst [F] was helping me change [H’s] nappy she said in an animated voice:

   ‘My favourite part of the day is [H]’.

   15.[F] is very involved in caring and spending time with [H].  She asks to cuddle her, gently pats her forehead and enjoys trying to calm her by singing lullabies.  Her voice and expressions are proud when people come to visit [H].  She will say:

   ‘This is my little sister.  Isn’t she cute?’

5. The evidence of the father and Ms S persuades me that F loves her baby sister and that a strong bond is developing between them.  It is my view that this half-sibling relationship is and will be highly significant for F, who is the only child of her parents.

   Section 60CC(3)(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;

6. The mother and father each complained that the other is inflexible with regard to requests to change arrangements for F.  I am doubtful that there are in fact any significant difficulties, as F has spent the last six years moving between her parents and enjoying time with each of them.  It seemed likely to me that both parties seized on past grievances in an attempt to bolster their position in these proceedings.  I seriously doubt that, if F were trapped between inflexible parents, she would have presented to the Family Consultant as “a charming, articulate and intelligent child who likes to entertain and amuse.  She played freely and spontaneously and, during her interview, she spoke, without any apparent anxiety, about her family, her feelings and the possible relocation”.

7. It was a significant element of the father’s case that F has experienced a routine of five nights per fortnight in his care for the past six years.  These arrangements operated in the absence of Court orders until November 2008 and have since continued without interruption.  It thus seems to me that the mother has a proven willingness and ability to facilitate and encourage F’s relationship with the father.

8. I have no reason to doubt that the mother genuinely intends to foster the relationship between the father and F, in the event of a relocation to New Zealand.  For reasons which appear below, however, I have reservations about Mr M’s long-term commitment to fostering F’s relationship with her father, his family and H.

9. I was troubled by some of Mr M’s statements to the Family Consultant on the subject of the father.  She reported:

   21.[Mr M] stated that he considers [the father] to have a good relationship with [F], which he attributed to [the mother] and the work she put into it, and that he is ‘open and prepared to facilitate ongoing contact’ between them (including by paying for [the father] to visit [F] in New Zealand).  [Mr M] also voiced the view that [the father] does not “accept or respect” [the mother’s] role as mother or that [the mother] being happy is likely to lead to [F] being happy.  He expressed the opinion that [the father] has a ‘very competitive and controlling nature’ (including being competitive with [the mother] for [F’s] ‘attention and affection’) and that it is the lessening of his control in [F’s] life, which would attend relocation in New Zealand, that underpins his objection to the move.

10. I do not agree with Mr M’s opinion that the father’s opposition to the proposed relocation stems from a determination to retain control over F’s life.  As the Family Consultant observed, he is a “loving and committed parent”. In my view it is entirely understandable that he is reluctant to surrender the current arrangements, which allow him and F frequent interaction, a variety of activities and positive involvement with extended family.

11. I am satisfied, and I find, that the father and Ms S could be relied upon to foster the relationship between F and the mother if they assumed the role of her primary carers.  There was nothing in the evidence which suggested any inclination on their part to exclude the mother from F’s life.  In any event, the mother clearly indicated that she would not move to New Zealand without F.

    Section 60CC(3)(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;

12. Inevitably, a relocation to New Zealand would change the frequency with which F is able to spend time with the father, H, the maternal family and Ms S and her relatives.  The Family Consultant offered this opinion as to the effect on F’s relationship with the father, Ms S and H if she moved to New Zealand:

    38.If [F] was to relocate to New Zealand with her mother, her mother would be happy and this would benefit [F].  On the other hand, if her father and step-mother were to remain living in Australia, her relationship with them would inevitably change.  In these circumstances, [F] and her father and step-mother would not have the same level of involvement in one another’s day-to-day lives and would, in this way, lose the sense of familiarity with one another which they currently enjoy and this is bound to change the essence of their relationship.  Furthermore, a new baby will have changed the dynamics in the family and, if relocation were to occur at the end of the year, only six months will have passed to allow for an adjustment to the new circumstances and to allow for some sort of rudimentary bond to develop between the infant and [F], which the infant would then not be capable of sustaining in the face of prolonged absence.

13. In her oral evidence the Family Consultant said:

    There is no escaping the fact that the nature of her relationship with her father would change with the relocation …

    It stands to reason that a child is going to experience a non-residential parent as absent …

    It will change the way she experiences him as a father.

14. The Family Consultant considered that F “would be able to maintain a relationship with the father”, on the basis of the mother’s proposals, “unless she gets sick of the travel and that can’t be predicted”.  The mother’s proposal would see F travelling between Auckland and Sydney on seven occasions each year.  I agree with the Family Consultant that it cannot be assumed that she will be prepared to make all of these trips on an ongoing basis.

15. As appears below, the father seriously doubted that he could afford to travel to New Zealand, especially accompanied by Ms S and H, with the frequency proposed by the mother.  For that reason, and because F may tire of the travel, it seems to me that there is a real risk that the mother’s proposal may not be a long-term reality.  In that event, there would be adverse consequences for F’s relationship with her father, Ms S, H, her paternal family and her stepmother’s relatives.

16. In her oral evidence the Family Consultant emphasised her concern about the impact of a relocation on the relationship between F and H.  She said “while [F] is of an age to hold onto a relationship with [H], the baby can’t hold onto a relationship with [F].  Every time [F] visited, she would see a different person because babies change so quickly.”

17. The only facet of F’s day-to-day life which would not change with a relocation to New Zealand would be the presence of the mother as her primary carer.  As the Family Consultant said:

    In the event of a relocation, [F] would have to cope with a lot of changes and uncertainty.

18. F last lived in a family unit consisting of herself, the mother and Mr M almost 18 months ago.  Mr M said that he has visited Australia approximately once per month since January 2011.  He arrived in Sydney two days before the trial commenced on 20 February 2012 and had last visited Australia in November 2011.  He said that he and the mother see each other approximately once each fortnight but, obviously, F is not present on the occasions when the mother travels to New Zealand.  F spent one week in New Zealand with the mother and Mr M in January 2012.

19. The Family Consultant was concerned at the effect of a change of school on F in the event of a relocation.  She said “school disruption of itself is another challenge”.  A change of school per se would not be a matter of great concern.  In my view, however, loss of friends and adjustment to a new school would be part of the “changes and uncertainty” for F which concerned the Family Consultant.

20. From F’s perspective, I was troubled by the prospect of a breakdown in the relationship between the mother and Mr M if they are living in New Zealand.  It seemed to me that there are reasons to doubt the strength of Mr M’s commitment to and the stability of this relationship.

21. Mr M did not appear to give any serious consideration to remaining in Australia when he lost his employment with Company A.  In oral evidence he said:

    I considered employment in Australia but there were no opportunities to pursue.  I considered employment opportunities in my field of […].  I would not have been able to find employment of similar remuneration outside my field – I did not look.

22. Mr M is currently employed by Company V in New Zealand.  In his affidavit he deposed:

    13.I was this year offered a permanent position at [Company V] but declined the offer and remained on contract in circumstances where the salary is more attractive, if I remain on contract.  The role is however secure, and my most recent project was approved by the Board.  This has made my role all the more secure.  I cannot now return to Australia.  I have obligations to my two girls, [D] and [E].  I have a secure position of employment.  My family are in New Zealand, as are many of my friends.

23. In oral evidence Mr M said of his present employment arrangements:

    I had a 12 month contract with [Company V] and at 6 months I had the opportunity to take a permanent job or extend my contract to 2 years.  Yes I could have come back to Australia.  I have not since looked at employment opportunities in Australia.

    Mr M elected to remain in New Zealand rather than return to Australia when presented with this opportunity.

24. This evidence indicated to me that Mr M is not prepared to consider seeking employment outside his chosen field.  I accept that he wishes to make proper financial provision for his children but he seems to have closed off all other options for employment.  In her oral evidence, the mother conceded that she and Mr M “have discussed looking at [Mr M’s field] in Australia again”.  She said that, as far as she is aware, Mr M has made no enquiries about this avenue of employment since December 2011.

25. In oral evidence the mother said of Mr M:

    I would hope that he is committed enough to support us in Australia.  We have not discussed financial support if I am here and he is in New Zealand.  We have discussed that I will have to work.

    In his oral evidence Mr M said:

    If [the mother] and [F] live in Australia I will not make any financial contribution.  [F] is not my child.

26. The notes of Dr J (Exhibit 2) contained indications of instability in the relationship between the mother and Mr M.  Dr J noted, inter alia:

    22/9/11         Had their ups and downs but enjoyed living together.  [Mr M] not committed to staying in Australia as no work opportunities.

    5/10/11         [The mother] felt she took her low feelings out on [Mr M].  She hasn’t spoken to [Mr M] since Monday [5/10 was a Friday] this unusual.  Usually Skype daily.

    19/10/11       [Mr M] suppose to be in Sydney last weekend.  [Mr M] very exhausted.

    2/11/11         Enjoyed [Mr M’s] company at weekend.  Resolved prior conflict.  [Mr M] getting frustrated at amount of separation and cost but supportive to [the mother].

    10/1/12         [The mother] and [Mr M] decided that they could not stay together if [the mother] is denied permission to go to NZ.  […] asked why ? was any alternative possible.  Long distance until [F] was older ?.

    [The mother] said no as [the mother] and [Mr M] want a ‘real’ relationship where they can spend their days together.

    24/1/12         Feels like her relationship in jeopardy and grieving over this.

    13/2/12         [Mr M] and [the mother] have found their friendship again.  [The mother] very happy about this.  Feeling more connected with [Mr M].

27. In his oral evidence Mr M said:

    If she isn’t able to move, I think the tension of not being able to raise our children as we want would mean that we would break up.

    He said further:

    Yes I am completely committed to this relationship but I don’t believe it can survive if she can’t move to New Zealand.

28. The mother and Mr M both gave evidence that they intend to marry and have at least one child together.  Mr M said that they first discussed marriage “not long after we moved in together in May 2010”.  It appeared to me that Mr M has taken few proactive steps to place himself in a position to marry the mother.  I do not suggest that marriage is a necessary indicator of commitment to a relationship.  I merely refer to the stated plans of the mother and Mr M.

29. Mr M has not obtained a divorce from his estranged wife and seemed content to leave that step in her hands.  He said:

    My wife is filing for divorce.  I believe she is talking to lawyers.  I have discussed with her 2 or 3 times of my need to divorce to marry [the mother].

    He offered no explanation as to why he has elected not to make an application for divorce himself.

30. All of these matters left me with real concerns as to the depth of Mr M’s commitment to his relationship with the mother.  I appreciate that separation will inevitably place strain on the relationship but my concern must be the likely consequences for F if her mother and Mr M separate while they are living in New Zealand.  F would be without the support of her father, Ms S and extended family members.

31. This scenario concerned the Family Consultant, who said in her oral evidence:

    It would be very difficult for her if she destabilises again and she is in New Zealand without her dad’s support and her mum is maybe not feeling great.  [This would be] a lose lose situation for [F].

    The Family Consultant said also:

    If there is any doubt about the level of support from [Mr M], the risks should not be taken but, on the other hand, the mother may have a fantasy about what this relationship would have meant to her life.

32. It seemed to me that Mr M is committed to his relationship with the mother but only on his own terms.    He is not prepared to investigate, let alone make any serious attempt to secure, appropriate employment in Australia.  As noted, however, the mother said that they have discussed the prospect of Mr M again being employed in his field in Sydney.  It may be that the mother and Mr M have different views about this possibility.

33. Mr M and the mother were at odds about his financial commitment, in the event that she remains in Australia.  She “hope[d]” that he is “committed enough to support us in Australia”.  He, however, said that he will make no financial contribution in those circumstances.

34. I was also left with concern as to Mr M’s level of insight into the effect of a relocation on F’s relationship with the father, Ms S and H.  When asked about the disadvantages of a relocation he said:

    She would miss her but she would still have a fantastic relationship with him

    and

    I know very little of her relationship with [H] and [Ms S] but they will continue to have a fantastic relationship.

    These statements seem to me to reflect a somewhat superficial analysis of F’s situation, in the event of a relocation.  Certainly, it was not the view of the Family Consultant that F and H would have a “fantastic” relationship in the event that they live in different countries.

35. Mr M was prepared to leave New Zealand when his daughters were four and two years of age, in order to pursue an employment opportunity and his relationship with the mother.  He was content to see his children only once per month for two years.  Of course he was perfectly entitled to make this choice but it raised concern for me as to the priority that he may give to F’s relationship with the father, his family and H in the fullness of time.  I am mindful of the Family Consultant’s evidence that “research shows that people have an idea about what they can manage when they really want to relocate but it can quickly not happen”.

36. The mother gave evidence that she intends to remain out of the paid workforce for the foreseeable future, in the event that she and F relocate to New Zealand.  In a financial sense, therefore, F’s ongoing relationship with the father, Ms S, H and their families will be left largely in the hands of Mr M and may not be a high priority for him.

    Section 60CC(3)(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;

37. In his affidavit the father deposed:

    52.I have calculated the financial cost to me if [the mother’s] Amended Initiating Application is granted in which case I would be able to visit [F] twelve (12) times a year.  If I travel alone to New Zealand the costs would be:  flight $500 (return), accommodation in hotel or serviced apartment in the [Auckland] area $600, car hire $250, fuel $50, meals and entertainment $300, cabs to and from or parking at Sydney airport $80 making a total of $1,780.  If I travel with [Ms S] and [H] to New Zealand the costs would be:  flights $1,020, car hire $250, accommodation in hotel or serviced apartment in the [Auckland] area $600, car hire $250, fuel $50, meals and entertainment $400, cabs to and from or parking at Sydney airport $80 making a total of $2,400.  This total would increase to $2,800 once [H] turns two (2) and we would need to buy a seat for her on the aeroplane… .

    53.[Ms S] is currently on maternity leave.  … Our current combined income for the current financial year will be $153,000.00.

    54.From the costs above, together with child support which I would of course continue to pay, it would not be financially viable for me to travel frequently to New Zealand and the opportunity for [H] to travel to see her sister would be very limited.

    56.As a result of the practical and financial difficulties outlined above the only significant time I could spend with [F] would be during the school holidays.  This would result in ten week periods during the school term where I would have little contact with [F] and [H] potentially none.  This would be a barrier to a strong relationship forming between them.  At [F’s] young age I am concerned that these lengthy separations will diminish her relationship both with me and with [H].

1. It seems to me that the father’s concerns, as expressed above, are well founded.  He was not shaken on this evidence in cross-examination.  Ms S is presently on indefinite maternity leave, so the financial fortunes of the father’s household are unlikely to improve in the near future.

   Section 60CC(3)(f): the capacity of:

   (i)each of the child’s parents;  and

   (ii)any other person (including any grandparent or other relative of the child);

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

2. The mother placed significant reliance on the alleged impact on her capacity to provide for F’s needs, in the event that she is unable to relocate with her to New Zealand.  In this regard she relied heavily on the evidence of Dr J.

3. In her affidavit the mother deposed that she began to consult Dr J after her separation from the father in 2006.  She saw Dr J monthly until 2008 and recommenced consultations on 22 September 2011.  She consulted a workplace counsellor, Ms U, in March 2011 and again began to see Dr J when Ms U moved away from Sydney.

4. In oral evidence Dr J said that she had no notes of her consultations with the mother in 2006 and 2007 “but in general terms she had stresses in her life as a single parent, working and co-parenting”.  She said that the mother told her of concerns arising from her separation from Mr M during the initial consultation on 22 September 2011.  Dr J said that she and the mother discussed “ups and downs in the relationship but she always said it was solid”.  Dr J said that the mother told her that she and Mr M were “not talking at times due to conflict”.

5. On 30 January 2012 Dr J suggested to the mother that she commence taking anti-depressant medication.  Her notes for that date recorded “[The mother] fantasising about taking her life.  Feels she can’t cope with this life”.  Dr J noted that she “assessed [the mother’s] risk as low but more stress ahead.  May increase suicidal thoughts”.

6. In a letter to the mother’s general practitioner dated 30 January 2012 Dr J wrote:

   I had assessed [the mother’s] suicidal risk and whilst she has thought about it she has no plan at this stage, but I am concerned if her mood keeps decreasing that this will change and her risk with suicide may increase.

   As a consequence, I am very concerned about [the mother’s] psychological health at the moment and I have suggested that she speak to you about anti-depressant medication.

   I have suggested this particularly in light of [the mother’s] up and coming legal proceedings.

7. On 8 February 2012 Dr J noted:

   “[The mother] reported feeling better on the medication had been on them for 1 week.  [The mother] said she was shocked by her feelings of suicide.  This frightened her.  Wants to be best mum she can for [F].  … and [the mother] spoke of what triggered the suicidal feelings?  [The mother] felt it was [F’s] b’day and not being able to attend.  Every year attends but this year not allowed to → ‘last straw’ [The mother] glad however that she is now on meds and feeling better”.

8. On 15 February 2012 Dr J noted:

   [The mother] reported having a better week [the mother] now on 10mg lexapro.  Therapeutic dosage.  Reported less tearfulness and ↑ mood.  [The mother] denied any suicidal thoughts, [the mother] said on reflection that not being allowed to go to [F’s] party was ‘last straw’ and started to catastrophise about being able to parent effectively with [the father].

9. I digress to observe that it seemed to me that the father did no more than attempt to protect F from stress which would almost certainly arise if both parents and their families were present at a birthday party so close to the start of the trial.  In my view it is unreasonable that the father be criticised for suggesting separate parties in these one-off circumstances.  In my view his emails to the mother (exhibit 5) adopted a conciliatory tone on this issue.

10. In oral evidence the mother denied that she suggested to Dr J in December 2011 that she had suicidal thoughts.  She said:

    I could not sleep.  I am experiencing some depression because I am separated from my partner.

11. There was no evidence from Ms U as to the counselling assistance which she offered to the mother.  Dr J’s notes contained reference to workplace stresses as well as anxiety over the separation from Mr M.  For example, on 5 October 2011 Dr J noted “… having conflict at work.  One employee in particular picks on [the mother] and creates conflicts in meetings”.  In oral evidence the mother said that, on 22 September 2011, she told Dr J that other employees were complaining about her flexible working hours.  It may be that Ms U, a workplace-based counsellor, engaged with the mother over employment issues.

12. In her report dated 5 November 2011 Dr J wrote:

    In my opinion, [the mother] will suffer greatly from a refusal to relocate to be with her partner.  Her relationship with [Mr M] is the first relationship since that of her ex-partner [the father].  She feels she has finally found happiness and this is now in jeopardy.  She vey much wants to create a home and family environment for herself and [F].

    Whilst [the mother] sees her first priority as [F’s] mother and this will remain the same whatever the outcome of the proceedings.  She is concerned that she will ‘spiral down’ into a deep depression if her relocation is refused.

13. In her report dated 9 February 2012 Dr J wrote:

    “In my opinion [the mother’s] depression would increase if she is refused permission to relocate to New Zealand.  This opinion is on the basis that reactive depression, such as [the mother’s], is a consequence of negative life events in her case the ongoing stressors associated with the impending law proceedings.  Such negative events can also exacerbate pre-existing depressive symptoms.  As such, in my opinion, a refusal to move to New Zealand to pursue her relationship with [Mr M] would increase [the mother’s] depression and suicidal ideation.

    In terms of [the mother’s] treatment, the evidence based treatment for severe depression is psychotherapy and anti-depressant medication.  The psychotherapy that I have used is Cognitive Behavioural Therapy, which focuses on the identification of irrational thoughts and beliefs and disputing these thoughts.  [The mother] has been reluctant to take anti-depressant medication in the past however, with her recent suicidal thoughts I have strongly urged [the mother] to speak with her General Practitioner, [Dr W] about anti-depressants and to start taking them.  I wrote a letter to [Dr W] requesting that she review [the mother] in regard to anti-depressant medication.

    [The mother] was reviewed again on 8 February 2012.  She had started anti-depressant medication and had been taking them for a week.  She said she felt some improvement, reporting less depressive symptoms.  [The mother] also denied any suicidal ideation at this time.”

14. Dr J’s notes make it clear that anti-depressant medication has assisted the mother’s psychological condition.  It seems that any suicidal thoughts, which the mother denied in any event, were transitory and triggered by the fact that she did not attend F’s birthday party.

15. Dr J gave no evidence that the mother would be at actual risk of self-harm if she is unable to take F to live in New Zealand.  She opined that her depression and suicidal ideation would be increased but recommended the use of anti-depressant medication and cognitive behaviour therapy to address these conditions.  Dr J did not opine that the mother would be unable to parent F adequately if she is obliged to remain in Australia.  She said that they have discussed ongoing treatment, which she is prepared to provide for the mother.

16. It is my assessment and I find to the requisite standard, that the mother would be able to manage her emotional reaction to remaining in Australia with F if she continues to take anti‑depressant medication for a time and maintains treatment with Dr J.  The mother gave no evidence that she would not take these steps and history suggests that she seeks professional assistance when necessary.

    Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

17. This consideration is not relevant to the present proceedings.

    Section 60CC(3)(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;

18. This consideration is not relevant to the present proceedings.

    Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

19. All of the evidence indicated that each of the parties has an appropriate attitude to their child and responsibilities and duties of parenthood.

    Section 60CC(3)(j): any family violence involving the child or a member of the child’s family;

    Section 60CC(3)(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

20. These two considerations are not relevant to the present proceedings.

    Section 60CC(3)(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;

21. It is difficult to assess the likelihood of further litigation.  In my view, it could reasonably be anticipated that the father would take action to protect F in the event of a breakdown of the relationship between the mother and Mr M in New Zealand.

    Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant.

22. I could identify no other fact or circumstance which was relevant to the resolution of the present dispute.

    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 fulfilled, or failed to fulfil, 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 fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

1. The evidence relevant to this subsection has already been considered in other contexts.  In summary, both the mother and father are loving and committed parents who recognise the significance of the other in the life of their child.

Section 65DAA: Equal time

1. As there will be an order for equal shared parental responsibility, I am required to consider whether an order for F to spend equal time with each of her parents would be in her best interests.  I am also obliged to consider whether it would be reasonably practicable for F to spend equal time with each of her parents.

2. F is accustomed to spending five nights per fortnight and block school holiday periods in the care of the father.  Neither party proposed that this time should be increased to a week-about or otherwise equal regime.  Nothing in the evidence persuaded me that such an alteration to long-standing arrangements for F’s care would be in her best interests.

3. At present the mother lives at Suburb B and the father in Suburb G, which are suburbs relatively proximate in the inner west of Sydney.  F attends Public School O, which is relatively accessible to the homes of each of the parents.  There would thus be no geographical impediment to an equal time regime.

4. The parties have successfully implemented a regime in which F spends five nights per fortnight with the father for the past six years.  They have communicated effectively with each other and largely resolved difficulties.  I do not consider the recent conflict over F’s birthday as indicative of any real incapacity to communicate and resolve difficulties; rather, to be a product of a highly stressful situation.

5. The reality is that neither parent supported an equal time regime.  Although geography would permit and the parents have the capacity to communicate and implement such an arrangement, I would not regard it as “reasonably practicable” for F to move between her parents in a regime which is unwelcome to both of them.

6. I thus find that it would be neither in F’s best interests, nor reasonably practicable, for her to spend equal time with each of her parents.  Accordingly, I am required to consider whether it would be in her best interests, and reasonably practicable, for her to spend substantial and significant time with each of her parents.

7. My findings and conclusions within the framework of the s.60CC considerations lead me to the view that it would be in F’s best interests for her to spend substantial and significant time with each of her parents. I will summarise these findings and then consider whether it would be reasonably practicable for her to spend substantial and significant time with each of the parents.

8. There is no need to protect F from abuse neglect or family violence.  She has enjoyed a meaningful relationship with each of her parents to this point in her life and will continue to do so in future.

9. F has a close, loving relationship with each of her parents.  She loves Mr M and Ms S, who both return her affection.  She is developing a close attachment to her baby sister H and enjoys the company of various members of Ms S’s extended family.  She has a loving relationship with her maternal and paternal grandparents.

10. The Family Consultant gave very persuasive evidence to the effect that the relationship between F and H would suffer if they are unable to spend time together frequently.  In my view, it is in F’s best interests for her to develop a close relationship with her only half-sibling.

11. These positive considerations militate against the proposed relocation. In my view, there are also risk factors which weigh against the mother’s proposal. I have made findings as to these considerations within the framework of s.60CC of the Act and will now summarise my conclusions.

12. It is my assessment that there would be risks to F’s stability and long-term relationship with her father, Ms S, H and extended family if she relocates with the mother to New Zealand.  I have set out above my reasons for concern as to the stability of the relationship between the mother and Mr M and the potential consequences for F if they separate while living in New Zealand.

13. I accept that the father’s financial capacity to travel to New Zealand, especially with Ms S and H, would prevent F from spending time with him and his family as frequently as was proposed by the mother.  I accept the Family Consultant’s evidence that there can be no guarantee that F will always be prepared to travel between New Zealand and Australia.  I have referred above to my concerns as to Mr M’s long-term commitment to funding F’s travel, or part thereof, if she moves to New Zealand.  For these reasons, I have real concerns that the mother’s proposal for F to spend time with her father, Ms S, H and their extended families may not be a medium to long-term reality.

14. The father articulated to the Family Consultant his reasons for remaining in Sydney rather than relocating to New Zealand with his family.  I found his arguments to be persuasive and reality-based.

15. I have considered the evidence in relation to the mother’s capacity to provide for F’s needs in the event that she is unable to take her to New Zealand to live with Mr M.  I have concluded that the evidence did not establish that she would be at risk of self-harm in those circumstances.  She has a history of seeking appropriate professional help and has discussed ongoing therapy with Dr J.

16. These considerations persuade me that it is in F’s best interests for her to spend substantial and significant time with each of her parents.  It would not be reasonably practicable for her to do so if the father lives in Sydney and she and the mother reside in New Zealand.  The distance between Sydney and Auckland alone precludes this outcome.

CONCLUSION

1. Orders in accordance with the father’s proposal would achieve a result whereby F spends substantial and significant time with each of her parents.  This outcome is precluded by the mother’s proposal.  I will thus make orders in accordance with the primary proposal of the father, which will preserve the existing arrangements for F to spend substantial and significant time with each of her parents and oblige the mother to ensure that the child lives within 20 kilometres of the Sydney central business district.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 8 June 2012.

Associate: 

Date:  8 June 2012