GOODALL & CHIFLEY

[2014] FCCA 676

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOODALL & CHIFLEY [2014] FCCA 676

Catchwords:
FAMILY LAW – Parenting – four year old boy – week about arrangement from the age of 12 months – mother now relocated to Brisbane – whether boy should go with her or remain in Melbourne with his father.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
A v A: Relocation Approach (2000) 26 Fam LR 382; (2000) FLC 93-035; [2000] FamCA 751
Cowley v Mendoza (2010) 43 Fam LR 436; [2010] FamCA 597
Hepburn v Noble (2010) FLC 93-438; [2010] FamCAFC 111
McCall v Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GR (2010) 240 CLR 461; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC 93-424; (2010) 263 ALR 368; [2010] HCA 4

Applicant: MS GOODALL

Respondent: MR CHIFLEY

File Number: MLC 11250 of 2013

Judgment of: Judge Riley

Hearing dates: 17 and 18 March 2014

Date of Last Submission: 18 March 2014

Delivered at: Melbourne

Delivered on: 10 April 2014

REPRESENTATION

Counsel for the applicant: Ms Agresta

Solicitors for the applicant: Septimus Jones & Lee

Counsel for the respondent: Mr P Indovino

Solicitors for the respondent: Randles Cooper & Co Pty Ltd

ORDERS

1. The mother and father have equal shared parental responsibility for X, born (omitted) 2009 (“X”).

2. X live with his father.

3. X spend time with his mother as follows:

   (a)during 2014:

   (i)one week per month;

   (ii)by telephone or Skype at least four times each week; and

   (iii)as otherwise agreed between the parents; and

   (b)during 2015 and afterwards:

   (i)one weekend each school term;

   (ii)the whole of the school term holidays in about April and September;

   (iii)half of the school term holidays in about July;

   (iv)half of the summer holidays, in two week blocks until X is eight years old, with the first two weeks to be spent with the mother in 2015 and in alternate years thereafter, and in blocks of half the holidays after X turns eight years old;

   (v)by telephone or Skype at least four times each week; and

   (vi)as otherwise agreed between the parents; and

   (c)at such further and other times as may be agreed if the mother is in Melbourne.

4. Changeover occur at Brisbane Airport every fourth time X travels from Melbourne to Brisbane or Brisbane to Melbourne and otherwise occur at Tullamarine Airport unless otherwise agreed.

5. When X travels by plane he be accompanied by either the father or the mother or his or her agreed nominee, until such time as the parents agree that X may travel unaccompanied.

6. When changeover is to occur at Brisbane Airport, the father arrange and pay for the fights for X and any accompanying adult.

7. When changeover is to occur at Tullamarine Airport, the mother arrange and pay for the flights for X and any accompanying adult.

8. Each parent give the other complete details of X’s flights, including date, time and airline, at least two weeks prior to departure.

9. Each parent:

   (a)immediately inform the other in the event that X is involved in any serious accident or suffers from any serious illness; and

   (b)forthwith inform the other of any medical or other health practitioner with whom X is scheduled to consult, or has consulted, and authorise the other parent to make all reasonable inquiries of such practitioner(s) in respect of matters concerning X’s health.

10. Each parent notify the other parent of any change of his or her residential address and/or email address at least 28 days prior to such change and keep the other informed of any change in contact telephone numbers within 48 hours of any change.

11. The parents use SMS text message or email for communication between them in relation to X’s health, education, care, welfare and development, and by telephone when urgent communication is required.

12. Neither parent abuse, insult, belittle, rebuke or otherwise denigrate the other party or any member of the other parent’s family or household in the presence or hearing of X nor permit any other person to do so.

13. The onus to stay abreast of school activities and communications reside with each parent, and each of the father and the mother be authorised:

    (a)to be able to attend any kindergarten/school attended by X and to communicate with teachers and kindergarten/school staff in relation to X;

    (b)to receive copies of kindergarten/school reports, and photographs and notices usually provided to the parents, at the expense (if any) of the receiving parent;

    (c)to attend all kindergarten/school functions and activities, including extra-curricular activities, which parents are usually invited to attend; and

    (d)to provide a copy of these orders to any kindergarten/school attended by X.

Notation: Neither parent admits conduct in the past or potential conduct in the future warranting order 12.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11250 of 2013

MS GOODALL

Applicant

And

MR CHIFLEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders in respect of X, born (omitted) 2009 (“X”).  X is 4 and a half years old.  His parents were in a de facto relationship from 2007 until 17 January 2010.  At the time of separation, X was about seven months old.

2. By agreement between his parents, between the ages of about seven months and about 12 months, X spent four nights a week with his mother and three with his father.  From about the age of about 12 months onwards, X spent alternate weeks with each of his parents.  That situation continued by agreement between the parents until 28 January 2014, when X was four years old.  In recent times at least, X has had daily telephone contact with the parent with whom he was not living.

3. On 28 January 2014, the court made orders by consent that, until further order, X spend alternate fortnights with each of his parents.  The impetus for those orders was that the mother was in the process of relocating to Brisbane.  She wanted X to come with her, but the parents were not able to agree on the future living arrangements for him.  The mother in fact relocated to Brisbane on 21 February 2014.

4. X has been in full time childcare since he was about nine months old.  He is expected to start primary school next year.

5. The mother is 36 years old and the father is 38 years old.  The parents have had a generally cooperative post separation relationship.  No concerns were raised with the court about violence or abuse, drug use or mental health issues.  On the other hand, the mother alleged that the father drank alcohol to excess in the aftermath of his father dying in 2007.  The father alleged that the mother struggled with caring for X when he was a baby.

6. It was common ground that X has two good parents with whom he has a close and loving bond.

7. Each of X’s parents has re-partnered.  The mother married her partner in July 2013 and the father married his partner in January 2014. The mother is pregnant and is due to give birth in May 2014.  The child is a boy and will be called Y.  The father’s partner, Ms Chifley, has three children from a previous marriage.  They are aged 26, 21 and 16 years old.  The oldest lives independently and visits his mother from time to time.  The middle child lives with her partner at her father’s home and visits her mother whenever she wishes.  The youngest child, A, lives with his father and spends time with his mother and the father in this proceeding at least five nights a fortnight.

8. Before X’s birth, the mother worked as a (occupation omitted).  She cared full-time for X until he was nine months old.  She then began working full-time as an (occupation omitted).  She left her job on 20 December 2013 and is not currently working.  She plans to be a stay at home mother until Y is at least two years old.

9. The mother’s husband, Mr Goodall, started a new job in about October 2013.  It is based in Brisbane, but he was able to work in Melbourne until January 2014.  He is a (occupation omitted).  He earns $150,000 per year and also receives a company car and the possibility of a $50,000 per year performance bonus.

10. X’s father earns about $35,000 per year in a casual (omitted) position.  His wife earns about $100,000 a year as a (occupation omitted).

11. Last year, X had grommets inserted in his ears and his adenoids removed.  Otherwise, he is and always has been healthy and appears to be developing at an age appropriate level.  X’s mother presently has gestational diabetes, which is expected to resolve when her baby is born.  Otherwise, neither parent reported any health issues to the court.

12. On 13 October 2013, the parents and their partners met at the (omitted) Hotel to discuss Mr Goodall being offered a job in Brisbane and the future arrangements for X.  The mother proposed a shared care arrangement with an eight week turnaround. The father proposed a six week turnaround.

13. The mother was living in (omitted) and the father was living in (omitted).  X attended a childcare centre about halfway between his parents’ homes.  In December 2013, X’s childcare centre was changed to one closer to the father’s home, on the basis that the mother would be relocating to Brisbane. 

14. While in the father’s care, X had one week at the new child care facility without any major incident.  However, during the mother’s week, she reported that X had some difficulty settling in.  She decided to leave work and no longer send X to childcare during his time with her.  The father continued to send X to the new child care facility.  He soon settled in well.

15. The mother said in cross-examination that it would break her heart if X did not live with her in Brisbane.  However, she said that she and her husband had moved to Brisbane and that was their situation.  The mother also acknowledged in cross-examination that it would break the father’s heart if X did move to Brisbane.

The family report

1. Ms J prepared a family report dated 18 February 2014. 

   
   

   On 5 February 2014, she interviewed the parents and their partners and observed X with his parents and their partners.  She did not interview X due to his young age.

2. Ms J reported that X presented as a friendly and delightful child.  He was relaxed comfortable and confident with the mother and her husband.  They were very attentive, appropriate and very caring.  They made games educational while having fun.

3. When the father and his wife came into the room, X hugged and kissed both of them.  He had “quite a chat” with Ms Chifley.  The three of them continued chatting and laughing.  The father showed X an animal book while X sat on Ms Chifley’s knee.  X was relaxed, comfortable and confident.  He smiled easily, laughed at times and made eye contact with his father and Ms Chifley.

4. Throughout the session, the father and Ms Chifley were very attentive to X, appropriate and very caring.  He said goodbye to them and hugged and kissed them as he was leaving with his mother and Mr Goodall.

5. Ms J was very concerned that the alternate week arrangement had not been age appropriate for X and that the alternate fortnight arrangement had been even worse.  She said:

   49.Children up to the age of at least three move through an attachment process with their primary carer (development of the primary relationship with the primary carer).  The (one) primary carer needs to be available to meet the child’s basic and emotional needs so that the child is able to develop a trusting relationship with their primary carer and consequently with other significant people in their lives.  If this happens on a continual basis for at least the first three years of a child’s life then the child feels secure and trusting of their primary carer.  Basically through these first three years if the child is separated from their primary carer for too long a period or their time with their primary carer is regularly disrupted then the child has great difficulty developing secure and trusting relationships and this would continue through their life.  In this case X has not had the one primary carer as he has lived week about with each parent.  It is my view that this would not have allowed X to develop a trusting and secure relationship with either parent as his attachment process was far too disrupted.  This is evidenced through Mr Chifley stating that X has a separation problem with him almost anxiety.  I also note in Ms Goodall's Affidavit that X had great difficulty separating from her and Mr Goodall when they started taking him to the new child care centre ((omitted)).  That X has problems with change in this way and in separating from his carer also indicates that he may feel insecure.  X has not had the opportunity to become attached to the one primary carer which may have resulted in X suffering separation anxiety.

   50.It is my view that while Ms Goodall and Mr Chifley are very responsible and caring parents who would never cause X harm, they have unwittingly and unknowingly affected X’s capacity to form trusting and secure relationships.  That Ms Goodall would suggest X could live in a shared care arrangement alternating in an eight week cycle also shows she has little insight into X’s emotional well-being but this is more about a lack of knowledge and understanding of young children’s emotional needs and well-being and how children move through an attachment process.  Mr Chifley suggesting that at the most the alternating cycle should be six weeks or three or two weeks is also about a lack of knowledge of children’s emotional needs and well-being and stages of development.  The Order by Consent made on 28 January 2014 also raises concerns that they both agreed to X living in a two weekly cycle.  X is far too young to not see his other parent for two weeks and particularly as he is accustomed to moving week about.  Under the circumstances of X living in a shared care arrangement week about from the time he was a baby it is not surprising that he would feel insecure and suffer separation anxiety within his relationships with the significant people in his life.

   51.In my view it is extremely sad that Ms Goodall and Mr Chifley did not obtain professional advice about the care of young children before entering into a shared care arrangement when X was so young.  X will now be left with his parents separated by distance and limited to an extent financially.  What is in X’s best interest at this age is to have both parents available to him on a frequent basis particularly as this has been his routine but this will not happen.

   52.Both Ms Goodall and Mr Chifley are very caring and responsible parents who believe they were caring for X with the best of intentions they could.  It is my view that both Ms Goodall and Mr Chifley have the capacity to meet the intellectual needs of X and while they have both been meeting the day to day emotional needs of X it is my view that his overall emotional needs have not been met but this more from a lack of knowledge about this rather than any other reason.  Both Ms Goodall and Mr Chifley were of the belief that they were doing what was in X’s best interest.

6. In relation to the mother’s proposed relocation, Ms J said:

   54.The issue of relocation is vexing as either way X being so young will be at a disadvantage in regard to maintaining his relationships with Ms Goodall and/or Mr Chifley.  In addition X has not had the one primary carer as Ms Goodall and Mr Chifley shared this role.  In my view it would be difficult to distinguish who would provide the better parenting.

   55.If X relocates to Brisbane he will lose the support network he has in Melbourne which includes the extended paternal family.  While Ms Goodall intends to develop new networks in Brisbane this would be yet another major emotional change for X.  Through his childhood thus far X has had ongoing involvement with his paternal extended family.  Relocation would drastically reduce such involvement as well as reducing the time he spends with one of his parents.

   56.X has recently started at a new day care which from accounts was a drastic emotional change for X.  It is my view that the less change X now has particularly given his age and history of care givers the better this will be for his emotional well-being.  Ms Goodall is moving to Brisbane and she will be at home at least until she has the new baby but in my view relocation for X means that he not only has a change in his daily routine where he would no longer be in day care, he also has a change in his daily routine where he would no longer be in day care, he also has a change in house as well as a major change in his primary care; being separated from Mr Chifley for a long period of time and living full-time with Ms Goodall.  If X is not permitted to relocate this would mean he is able to continue his daily routine at child care and he would still be living in a familiar house but of course he would be separated from Ms Goodall for a long period of time.  The only positive for X either way is that he does have appropriate language and cognitive skills so he should at least have very regular communication with the parent he does not live with to assist him to maintain his relationship with that parent.

   57.The instability of Ms Goodall at the time of having X was raised and claimed by Mr Chifley.  There is no evidence to support this so these claims by Mr Chifley would need to be tested in Court.  If there is any basis to this claim it is far too difficult to predict if the same reaction would occur again with the birth of the new baby.  As with any relocation there is always unpredictability about how this relocation will eventuate.  It may be fine with everything falling into place and hopefully this is how it will be for Ms Goodall and Mr Goodall but they need to be mindful that with the very generous package being provided to Mr Goodall more than likely he will have at least some pressures with the new company having certain expectations about what he puts in.  At the same time Ms Goodall is expecting a baby as well as finding her place in a new community.  On the other hand, Mr Chifley and Ms Chifley will remain settled in their routines so apart from whatever happens with X there will not be major changes happening in their lives or home.

   58.It is my view that on balance, for X the more predictable home and lifestyle in the shorter term would be in Mr Chifley’s home in comparison with all the changes taking place for Ms Goodall.

   59.Whichever parent X lives with how he is able to maintain his relationship with his other parent would be very dependent on how the parent he lives with will facilitate this with X.  It is my view that both Ms Goodall and Mr Chifley would want X to maintain his relationship with the other parent.

   60.If relocation is not permitted then X would live with Mr Chifley and spend as much time as is possible including financially possible with Ms Goodall.  Through 2014 this should include at least one week (finances depending) if not more weeks each month as well as three phone and/or Skype communications each week.  If such spend time was not possible then as much time as is affordable.  As X would start school in 2015, then it is suggested through this year and thereafter he spends time with Ms Goodall one weekend each school term; for two whole school term holidays and half of all other school holidays and December/January holidays as well as phone and Skype communication and also e-mail. 

   61.If relocation is granted for X then he would live with Ms Goodall and through 2014 spend time with Mr Chifley as set out above (if it was with Ms Goodall) and the same times and communication through 2015 and thereafter as is set out above (for Ms Goodall).

1. Ms J made recommendations as follows:

   62.It is recommended that Ms Goodall and Mr Chifley share parental responsibilities for X.

   63It is recommended that if relocation is not granted then X lives with Mr Chifley and spends time and communicates with Ms Goodall as is suggested in paragraph sixty.

   64.It is recommended that if relocation is granted that X lives with Ms Goodall and spends time and communicates with Mr Chifley as is suggested in paragraph sixty-one.

2. As can be seen, in her report, Ms J did not make a clear recommendation in favour of, or against, X relocating.  The closest Ms J came in her report to a clear recommendation was in paragraph 58 where she said that the more predictable home and lifestyle for X in the shorter term would be with his father.

The family consultant’s oral evidence

1. In her oral evidence, Ms J said that she did not believe that X had a primary attachment.  She reiterated her concerns about X never being able to form trusting relationships because he did not have a primary attachment to only one adult.  When asked whether research indicates that a person will inevitably have difficulty forming trusting relationships if they have had two close and loving parental relationships rather than one, Ms J was not able to identify any such research.

2. Ms J was asked about evidence that supports her view that X suffers from poor attachment.  She said that he suffered distress when starting at the new childcare centre.  However, Ms J conceded that his introduction to the new centre was well managed by his parents and that the problem soon passed.

3. Ms J was asked about the father’s concession that, on two occasions when X was with him, X was unsettled and was returned to his mother.  Ms J did not consider that these circumstances indicated that X had separation anxiety from the mother.  Ms J noted that the father had reported to her that X has a separation problem from the father.  However, the father did not state that in his affidavits.  Consequently, I give minimal weight to that claim.

4. Ms J said that in this case:

   … we have two very, very good, appropriate, and caring parents and it’s such a fine line …

   …

   … they’re both what I would see as very fine parents, …  it’s very difficult to separate them,  as …  parents … .

5. In relation to the effect on X of not living primarily in the same household as Y, Ms J considered that the situation was vastly different from separating siblings who already had an established bond. 

6. Ms J considered that it was possible that, if X did not move to Brisbane with his mother, he might feel that he had been replaced in his mother’s affections by a new baby.  However, Ms J said that whether this eventuated would depend on how the parents managed the situation.

7. Ms J agreed that apart from short term disruptions to X, there were other long-term considerations that the court needed to take into account.

8. Ms J was asked to comment on the mother’s plan to stay at home until Y is at least two years old compared with the father’s plan to continue to send X to full-time childcare before he starts school next year. Ms J said that the mother had also intended to be a stay at home mother when X was born but that did not work out.  Ms J said that it was not appropriate these days to have a view on whether a child should or should not be in childcare.  However, she then said that her own view was that it might be best for a child to be at home with a parent if the parent was managing.

9. Ms J agreed that the first year of school is physically and emotionally exhausting for children.  She said that it would be helpful for the child to have a parent or grandparent or another familiar adult to be able to assist with the irregular school hours children have at the beginning of the first year.

10. Ms J also agreed that, whatever order the court makes, there is going to be unpredictability and emotional disruption for X.

The proposals of the parents

1. X’s parents are in agreement that they should have equal shared parental responsibility for him. 

2. In her case outline, the mother proposed that X lives with her in Brisbane and spend time with his father:

   a)in Melbourne:

   i)for four weekends per year, from Thursday to Sunday in 2014 and from Friday to Sunday in 2015 and following;

   ii)for half school holidays; and

   b)in Brisbane:

   i)on the third weekend each month from Thursday to Monday; or

   ii)for such other four day block as may be agreed.

3. However, the mother said at the end of her closing submissions that her fall back position was that X:

   a)live with his father for the remainder of 2014;

   b)visit his mother once a month in Brisbane during 2014; and

   c)relocate to Brisbane to live with his mother before starting school in 2015.

4. The mother said that her fall back position was intended to meet the concerns expressed by Ms J that it would be very unpredictable for X to go to Brisbane at this point because his mother is in the process of settling into a new city, his stepfather is settling into a new job and his mother is about to have a new baby.

5. The father proposed that:

   a)X live with him;

   b)until X starts school, X spend with his mother:

   i)one week each month;

   ii)liberal amounts of time by telephone and Skype; and

   iii)time as otherwise agreed between the parents; and

   c)after X starts school, X spend with his mother:

   i)one weekend each school term;

   ii)two whole school term holidays;

   iii)half of the other school term holiday and half of the summer holidays;

   iv)liberal amounts of time by telephone and Skype; and

   v)time as otherwise agreed by the parents.

The issues raised by the mother

1. The mother said in closing submissions that in this case there are “two really good parents” and that the case is finely balanced.  She said that X has really warm and close relationships with both of his parents and there was no expert evidence to the effect that he is primarily attached to one or the other of his parents.  She said that both parents had demonstrated that they have met X’s needs and fulfilled their obligations as parents.  However, the mother went on to say that there were some differences that could be detected between the parents. 

a.         maintenance of extended family relationships

1. The first distinction relied upon by the mother concerned her proven ability to assist X to maintain his relationships with his extended family on both his maternal and paternal sides.  The father conceded that, on a couple of occasions for periods of some months, he had not been on speaking terms with his mother and did not facilitate X’s relationship with her during those times.  However, he did not dispute that the mother had maintained the relationship between X and the paternal grandmother after the parents’ separation.  Consequently, the mother has more consistently promoted the relationship between X and the paternal grandmother than the father has.  Having said that, the paternal grandmother sat with the father throughout the hearing.  

2. In any event, the real question is whether the relationship between X and the paternal grandmother is likely to be maintained in the future if X were to move to Brisbane.  It is reasonable to infer that the mother would facilitate contact between X and the paternal grandmother if she were to visit Brisbane.  The paternal grandmother is in good health and is financially secure.  However, she cares for the father’s brother who is severely disabled.  The paternal grandmother did not give evidence about her willingness or ability to travel to Brisbane.  In these circumstances, it would be speculative to make any forecasts about the likely future contact between X and the paternal grandmother in Brisbane.

3. In the mother’s principal proposal, X would spend half school holidays and four weekends per year in Melbourne with his father.  However, she also said in evidence that she and her husband would come to Melbourne to visit her husband’s family.  She said that, at those times, she would also enable X to visit his paternal family.  I accept that that is her intention.  However, she is likely to be pressed for time when she visits Melbourne.  The reality probably is that, if X were to live in Brisbane, he would be more likely to see his paternal grandmother in Melbourne with his father than with his mother.

4. The mother also claimed that she had facilitated contact between X and the paternal aunt.  The father said that he did not know about the extent of any relationship between the mother and his sister.  In the circumstances, I accept the mother’s evidence about this matter.

5. The mother claimed that the father was not on speaking terms with his sister.  The father denied that.  He said that he and X had gone to his sister’s birthday party in January 2014. I accept that evidence.  The father seemed to me to be telling the truth about that issue.

6. I consider that the mother and father have both maintained X’s relationship with his paternal aunt.  There was no evidence about how or when X might see his aunt if he were to relocate to Brisbane.  The possibility of X spending time with his paternal aunt when the mother comes to Melbourne to visit her husband’s family probably faces the same time restrictions as the possibility of X visiting his paternal grandmother during those visits.

7. It was not suggested that since separation the father has maintained X’s relationships with anyone in the maternal extended family.

8. I accept that, in the past, the mother has been very good at helping X to maintain relationships with his extended paternal family members.  However, the reality is that, on any view, for X to maintain relationships with his extended paternal family will be much more difficult, and much less likely, if he is living in Brisbane than if he is living in Melbourne.

9. The mother does not have any family in Brisbane.  The father’s close family lives in Melbourne.  However, he does have a grandmother, an aunt and some cousins who live in Queensland including a cousin who lives in Brisbane.  The mother grew up in (omitted) and most of her family remains there.  The mother has one sister who lives in New South Wales and her father and his new wife live in (country omitted).  The mother’s new husband’s parents live in (omitted) in Victoria.  

   
   

   If X were to move to Brisbane he would not have ready access to any close extended family members.  The mother also acknowledged that she and her new husband do not have any close friends living in Brisbane.

b.         the ability of X’s parents to meet his needs

1. The second distinction relied upon by the mother was that she was more attuned than the father to X’s needs.  In this connection the mother said that she became concerned about X’s hearing and had him checked by a general practitioner who recommended examination by an audiologist.  The mother said that the audiologist said that X probably did have a degree of hearing loss and recommended that he have grommets inserted.  The mother did not provide any evidence from the audiologist or a surgeon.  It is not clear whether the stated hearing loss was a temporary problem associated with blocked ears or permanent damage.

2. The mother and Mr Goodall organised and paid for the surgery, which occurred in early 2012.  The mother and Mr Goodall were at the hospital during the surgery but the father and Ms Chifley were not.  They cited difficulty in getting time off work when the time of the surgery was changed at the last minute.

3. The grommets fell out about eight or nine months later, as expected. However, X then had a serious ear infection, which lasted for about three months.  X had more grommets inserted in August or September 2013 and also on medical advice had his adenoids removed.  Again, the mother and her new husband attended hospital during the surgery but the father and Ms Chifley did not.  Again, the mother and her new husband paid for the surgery.

4. On this evidence, I accept that the mother was more proactive than the father in having X’s hearing checked and treated. I also accept the mother’s undisputed evidence that she attended to X’s immunisations and kept his immunisation record.

5. The mother thinks that X would benefit from seeing a speech therapist.  However there was no medical or other expert evidence to the effect that X has any difficulty with his speech.  Ms J did not report any difficulty or impediment.  Consequently, there is no proper basis on which the court could conclude that X needs to see a speech therapist and that the mother is more alert to this need than the father.

c.           the obligation to maintain the child

1. The third distinction relied on by the mother was in relation to the financial support of X.  The mother acknowledged that both parents had financially supported X.  However, she gave undisputed evidence that she provided child support to the father for a long period of time and shared child care rebates with the father.  The mother also gave undisputed evidence that she had paid for health insurance for X and paid any medical expenses associated with his surgery.  I accept the mother’s undisputed evidence about these matters.

d.       the father’s criticisms of the mother

1. The fourth distinction relied on by the mother was that her client was entirely respectful of the father’s role in X’s life while the father sought to demean the mother and her role.

2. In support of this proposition, the mother said that, rather than saying that she was a good mother, the father told the family consultant that she was not a bad mother.

3. The mother also said that the father said that:

   she thinks she’s more attuned to the child’s needs

   and he obviously meant that she is not attuned in fact.

4. In support of this point, the mother also said that the father claimed that she had struggled to care for X when he was a baby.  The father said in his affidavit material that when he returned home from work, the mother would show signs of stress and anxiety and hand X over to him to care for him for the evening.  The father said that the mother would hand X over to him:

   … as if it was a performance of shift work.

5. The mother acknowledged that the father helped her for the first six to eight weeks after X was born with cooking, cleaning, grocery shopping and maintenance around the house.  She said she had had a difficult labour and had been prescribed bed rest.  The mother denied that she struggled to cope with the care of X but said that it was her first experience of motherhood and of being financially dependent on another person.  She said that the father’s employment was inconsistent and their financial circumstances were sometimes precarious.  She said the financial stress exacerbated their already failing relationship.  The mother said that the father was drinking to excess because he had struggled to come to terms with his father’s death in 2007.

6. The mother acknowledged that she did hand X over to his father when he returned home from work so that she could have some respite and so that X could spend some time with his father.

7. In an email to the mother dated 3 November 2013, the father said, among other things, that he was sorry he had not been there “… for you more for bubba”.

8. It seems to me that it is an overstatement to say that these circumstances amount to the mother struggling to cope with caring for X as a baby.  There was no suggestion that the mother struggled to the extent that she neglected or mistreated X.  It was not unreasonable for the mother to enlist the father’s support in caring for their new baby.  Any struggle that the mother experienced at that time seems to me to have been based more on her failing relationship with the father and their financial problems than on any difficulty with caring for a baby as such. 

9. The mother’s fundamental point is that the father has been critical of her.  As these things go, the criticisms that the father has made of the mother are very mild.  There is no suggestion that the father has criticised the mother in the presence or hearing of X.  It seems to me that the father’s criticisms were no more than an attempt on his part in the context of this litigation to explain why X should stay with him rather than move to Brisbane.  I do not think that they amount to an attempt to demean the mother or her role in X’s life.  On the contrary, his actions, in maintaining by agreement a civil equal shared care arrangement with the mother for more than three years, show that he values her role in X’s life.

e.        the mother initiated the consultation at the (omitted) Hotel

1. The fifth point of distinction that the mother relied upon was that she initiated the consultation at the (omitted) Hotel about the proposed move to Brisbane.  She said the fact that she sought to consult with the father about the move spoke very highly of her attitude to the father and the responsibilities of parenthood.

2. I do not see this as being a point of distinction.  On the mother’s own evidence, she suggested the meeting after the father had heard about a possible move through a mutual friend.  In any event, the fact that the mother could suggest such a meeting, and that it proceeded with good will, reflects very well on both parents.

f.           the opportunity to have a sibling relationship

1. The sixth point of distinction relied upon by the mother was that, if X moves to Brisbane with her, he will have the opportunity to have a sibling relationship with Y.  The mother said that the bond between X and Y would not be as strong if they were not able to grow up together.

2. The father claimed that X has a strong relationship with his wife’s third child, A, who is 16 years old.

3. I accept the mother’s claim that X’s relationship with Y will probably not be as strong if X does not move to Brisbane.  However, the strength of that relationship will be at the cost of X’s existing relationship with A.

4. I also accept that X will be the half-brother of Y and is the step brother of A.  In the normal course, one would expect to have a stronger bond with a half sibling of approximately one’s own age than with a step sibling who is considerably older.

The issues raised by the father

1. In closing submissions, the father relied on the family report prepared by Ms J. 

2. The father also emphasised that the mother’s husband’s contract of employment specified in clause 8:

   8.1.Our ordinary office hours of work are a 38-hour week.

   8.2.However, you will be expected to work whatever hours may be reasonably necessary to enable work you perform for (omitted) to be effectively carried out.   Your remuneration has been structured to recognise this.

3. The father also noted that the mother’s husband was required to work overseas from time to time.

4. The point of this seemed to be that, as the mother had struggled when X was a baby, she could similarly struggle when her new baby was born and that could lead to her care of X being compromised.

5. As indicated above, I do not accept that the mother struggled to care for X as a baby.  Rather, I consider that, if she struggled at all at that time, it was in relation to her failing relationship with the father.

6. In any event, the mother’s husband gave evidence in this matter. 

   
   

   He said persuasively that he was able to leave work before 5pm everyday and was only required to go overseas on rare occasions of short duration. I accept that evidence.

7. Moreover, the mother’s father in law, who lives in (omitted) in Victoria, swore an affidavit in which he said that he had the means and ability to go to Brisbane and offer support to the mother and her husband at any time.  He said his wife was due to retire in early July this year and she will also offer any support necessary.  He said that he and his wife intended to spend three weeks in Brisbane at around the time of the baby’s birth.  He also said that he was able to get to Brisbane in a matter of hours if the need arose.  The mother’s father in law was not cross examined and I accept his evidence.  When he said that he could get to Brisbane within a matter of hours, I take him to mean a minimum of seven hours, given the distance between (omitted) and Melbourne, and the flight time to Brisbane.  On some occasions, depending on the time of day and the flight timetables, it could take him closer to 24 hours to reach Brisbane.

1. All in all, I consider that the mother is likely to receive good support from her husband and his parents when her baby is born.

Other issues

a.       the meeting at the (omitted) Hotel

1. It was common ground that the parents and their partners met at the (omitted) Hotel to discuss the consequences of the mother’s husband being offered a job in Brisbane.  It was also common ground that the mother suggested that X spend eight weeks with each parent in turn and that the father thought eight weeks would be too long for X and suggested six weeks instead.

2. The mother claimed that at the conclusion of the meeting, the father said:

   We understand, life happens, take the job mate we’ll work it out.

3. The mother also claimed that this statement constituted the father giving his blessing for the mother’s husband to enter into the work contract he had been offered and constituted his agreement for X to live in Brisbane with his mother.

4. The father said that he did not give his blessing to the mother’s husband entering into a work contract because it had nothing to do with him.  He said that he had not reached any agreement with the mother and had certainly not agreed to X spending most of his time in Brisbane.

5. The father said that the meeting was not a consultation as such but was more like informing him of a decision that had been made.  In oral evidence, the father claimed that he had merely said, “all the best” to the mother’s husband in relation to his job.  However, in an affidavit, he said that he had made a comment of the nature claimed by the mother but said further that he had not meant that he was consenting to X living in Queensland.  He said it only concerned the mother’s husband accepting a job in Queensland.

6. I consider that the father did say words substantially the same as those alleged by the mother.  However, I do not consider that those words meant that the father agreed to X living more or less entirely in Queensland with his mother for years into the future.  That is made clear by the offers that both parents acknowledge that they made about an eight week turn around or a six week turn around.  It seems that, at the time of the meeting in the (omitted) Hotel, neither parent was really thinking about what would happen when X started school.  They both seemed to have only thought about this year. 

7. On the mother’s own material, after the meeting at the (omitted) Hotel, the parents attempted mediation, for which their matter was deemed unsuitable, and the mother then obtained legal advice on 3 December 2013.  It was at that point that the mother said that she realised that the six week turnaround:

   … really would not be feasible and it would make it difficult for X to attend Kindergarten this year.  Furthermore the arrangement could not work beyond this year as X is to begin primary school in 2015.

8. It is clear from that chronology that the mother had not herself formulated a plan, at the time of the meeting in the (omitted) Hotel, that X would be with her more or less full time in Brisbane for years into the future.  No one, at the time of the meeting, seems to have been looking beyond 2014. 

b.       whether  X faced disruption regardless of the move

1. The mother claimed that X was facing major changes in the short term, regardless of whether he moved to Brisbane, because the week about arrangement had to end when he started school next year.  The mother said that, because she lived in (omitted) and the father lived in (omitted), the week about arrangement could not continue when X started school.

2. The father disputed that.  He observed that both parents were renting.  He said that there would have been nothing stopping them moving closer together so that the week about arrangement could continue after X started school.

3. I agree with the father on this issue.  The parents could have moved closer together to enable X to continue having a week about arrangement with each of his parents after he starts school.  In any event, the scale of the disruption that would come about as a result of him moving to Brisbane is much greater than if he had moved to an arrangement in which he was with one of his parents in Melbourne for most of the time.

The authorities

1. The father submitted that the law was still as set out in A v A: Relocation Approach (2000) 26 Fam LR 382; (2000) FLC 93-035; [2000] FamCA 751. However, in Hepburn v Noble (2010) FLC 93-438; [2010] FamCAFC 111 at [100], the Full Court of the Family Court said that approach stipulated in A v A did not survive the amendments made in 2006 to the Family Law Act 1975 (“the Act”). 

2. In McCall v Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92 at [69], the Full Court of the Family Court said that:

   However, it appears to us that dealing with a parenting application involving a relocation where the presumption applies and an order is made for equal shared parental responsibility a court must consider:

   (a)whether equal time (or substantial and significant time) with both parents would be in the child’s best interests;

   (b)consider and weigh up an equal time (or substantial and significant time) regime against all the factors having advantages for the child in the relocation proposal, including considering the matters in s 65DAA(5);and then

   (c)consider whether an order should be made for equal time (or substantial or significant time) in one location, or for the child to reside with one parent in a distant location, with such other orders as will maintain the benefit of a meaningful relationship for the child if appropriate to do so;

   In this context the use of the word “consider” in s 65DAA(1)(c) appears to us to have relevance.

3. In Cowley v Mendoza (2010) 43 Fam LR 436; [2010] FamCA 597, Murphy J said at [31]:

   In my view, it remains the case that, as I said in the earlier decisions referred to:

   •A “relocation case” is not a specific subcategory of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.

   •A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.

4. Of course, the ultimate authority in this area is the High Court’s decision in MRR v GR (2010) 240 CLR 461; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC 93-424; (2010) 263 ALR 368; [2010] HCA 4, where the High Court said at [13] and [15]:

   13Section 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. 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. (footnote omitted)

   ...

   15Section 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.

Best interests of the child

1. Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   Note:The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4).  In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>

   Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

   However, the best interests of the child are not the only consideration.

2. Section 60CC(1) of the Act relevantly provides that:

   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).

   The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

3. Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   I will address the relevant considerations in order.

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

1. There can be no doubt that X has a meaningful relationship with each of his parents and benefits enormously from those relationships.  There can also be no doubt that X would benefit in the future from having a meaningful relationship with both of his parents. 

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. Neither parent submitted that this factor had any relevance in the present case, except perhaps to the extent that the father claimed that the mother had struggled when X was a baby.  However, as explained above, I do not consider that the mother did struggle in any relevant sense.

2. Ms J has said that the parents have unwittingly damaged X’s ability to form trusting relationships by caring for him in a week about arrangement.  However, she was not able to point to any research that would apply directly to the circumstances of this case, where X had two very loving and capable parents, who, on the whole, have been able to deal with each other with respect and courtesy.  I am not persuaded that any actual harm has been done to X from that arrangement. 

Section 60CC(3)(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 views

1. X has not expressed any views and is too young for any significant weight to be given to them in any event.

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. X has a strong and loving bond with both of his parents.  He also has good relationships with numerous members of his extended family on both sides, including his step families on both sides.

Section 60CC(3)(c) the extent to which each of the child’s parents 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

1. Both parents have taken every opportunity to be as involved as they could be in X’s life, with the possible exception of the father not being very engaged in relation to X’s surgery.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Both parents have maintained X financially.  The mother has paid the father child support.  The mother submits that the father has not been entirely honest about the level of his earnings.  However, I do not consider, on the balance of probabilities, that such a claim has been substantiated.

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

1. It seems almost certain that X is going to be separated, to a large extent, from one or the other of his parents and from segments of his extended and step families.

2. The substantial separation from one or the other of his parents will probably be very difficult for him to understand or manage emotionally.  The effect on X of the separation from his other family members will probably be of the same type, but with less intensity.

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

1. There will be very considerable practical difficulties and expenses in X spending time and communicating with whichever of his parents he does not live with.  Brisbane is a long way from Melbourne.  It is fortunate that the father lives in (omitted), which is relatively accessible to Tullamarine Airport in Melbourne.

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

1. Each parent has the capacity to provide for X’s needs, including his emotional and intellectual needs.  Ms J considered that the parents had failed to meet X’s needs by caring for him in a week about arrangement.  However, as discussed above, I do not accept that X has in fact been damaged by that arrangement.

2. The mother claims that she was more attuned to X’s hearing problems than the father.  However, there is no medical evidence before the court on which a finding could be made about how significant a problem X actually had with his hearing, or whether it would have resolved by itself in time.

3. The mother also said that she would be better able to help X with his transition to school, as she will be a stay at home mother for at least two years.  Ms J observed that the mother had the same intention when X was a baby, but returned to work when he was nine months old.  Ms J also observed that other family members, beside parents, can support children in the first year of school by collecting them when they finish early and so on.  Overall, Ms J seemed reluctant to make any firm forecasts about X’s likely future in Brisbane, given the variety of unknown quantities at play in that scenario.

4. On the other hand, the father and his wife have been providing stable and competent care for X for a considerable period of time.

5. It does not seem to me that the court could confidently form the view that the mother’s care of X in Brisbane would be significantly better than the father’s care of X in Melbourne.

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

1. Neither parent suggested that this factor had any relevance to the present case.

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;

1. This factor does not apply in this case.

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

1. Both parents have demonstrated a very good attitude to the responsibilities of parenthood.

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

1. There is no suggestion of family violence on this case.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)      any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)     any other relevant matter

1. There is no suggestion that a family violence order has been made in this case.

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

1. It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings.  However, it is by no means apparent what that order would be.

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

1. The relevant facts and circumstances are discussed elsewhere in these reasons.

Equal shared parental responsibility

1. Section 61DA of the Act provides as follows:

   (1)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.

   (2)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.

   (3)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.

   (4)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.

2. The parents and Ms J were in agreement that the parents should have equal shared parental responsibility for X.  The presumption of equal shared parental responsibility is not displaced in this case by any abuse or family violence.  The presumption is not rebutted in this case by any other factor that indicates that it would not be in X’s best interests for his parents to have equal shared parental responsibility for him.  Consequently, the presumption will apply.

Equal or substantial and significant time with each parent

1. Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:

   Equal time

   (1)… 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.

   Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   Substantial and significant time

   (2)… 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; 

   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.

   Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   (3)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.

   (4)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

   (5)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 parents’ 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.

   Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

2. If the mother and father lived in close proximity, there would be little doubt that it would be in X’s best interests for him to continue with a week about arrangement.  Although it may not have been the best arrangement for him when he was an infant, he is used to it, and he is now approaching an age at which many children thrive in an equal shared care arrangement. 

3. However, X’s parents do not live in close proximity.  The mother has moved to Brisbane.  She told the court that she intends to stay there whether X comes with her or not.  There was no suggestion that the court should compel the mother to return to Melbourne. In any event, I do not consider that an order compelling the mother to live in Melbourne would be in X’s best interests.  It would only create enormous dissent in what has been a very cooperative, though not perfect, parenting arrangement.

4. There was no suggestion that the father should be compelled to move to Brisbane.  That would not be in X’s best interests either.  The father’s wife has three children in Melbourne.  It is not at all viable for the father and his wife to move to Brisbane.

5. In theory, X could spend equal time with each parent this year, before he starts school.  At present, the parents have agreed to X spending alternate fortnights with each parent. 

6. However, Ms J was strongly of the view that a fortnight is too long for a person of X’s age.  Ms J thought a week at a time was the maximum that X should spend away from his home base.  Consequently, Ms J recommended that this year, X spend at least one week per month, if not more, finances permitting, with the parent with whom he was not living.

7. I accept Ms J’s evidence about this matter for the reasons that she gave.  Consequently, equal time this year would be in X’s best interests, if it can be managed financially.  If equal time cannot be managed financially this year, then the next best option is for X to spend one week per month with the parent with whom he is not living.  

8. Because the mother lives in Brisbane and the father lives in Melbourne, X spending equal time with each of his parents will not be practicable once X starts school.  For the same reason, it will not be practicable for X to spend substantial and significant time, as defined, with the parent with whom he is not living, once he starts school.

9. This is a very difficult case.  It is finely balanced.  At least one parent, and possibly X, will be hurt by whatever outcome is determined.

10. Ultimately, after much consideration, I accept the recommendation of Ms J, as an expert, to the effect that it is in X’s best interests to live predominantly with his father.

11. Ms J said that the father offered X a more predictable home and lifestyle in the shorter term, compared with all the changes taking place for the mother.  By the shorter term, Ms J presumably meant over the next six months or so, as the mother establishes herself in Brisbane and adjusts to her new baby.

12. The mother criticised Ms J for taking a short term approach.  However, it should be remembered that six months is a very large proportion of X’s conscious existence.  It is important for him to have predictability for such a large part of his young life.  

13. Moreover, in a case as finely balanced as this one, a distinct short term advantage is enough to tip the scales.  It is obviously very difficult to predict the short term future and even more difficult to predict the long term future.  But it can be said with some confidence that the mother will have a period ahead of considerable adjustment, with a new city to live in and a new baby.  Those things tax everyone.  X is more likely to have a more predictable existence, in the short term, with his father than with his mother.  I do not consider that the various matters pressed by the mother outweigh that consideration. 

14. The mother proposed, if the court took that view, that X live predominantly with his father this year, but visit his mother once a month and move to Brisbane next year in time to start school.  This option was not put to Ms J.  I do not consider it to be in X’s best interests.  X needs to establish himself in a stable environment.  The mother’s fall back position would be extraordinarily disruptive and confusing for X.

15. In relation to the mother’s submission that X might feel abandoned by the mother and replaced by the new baby, I accept Ms J’s evidence that X’s reaction will depend on how his parents manage the issue.  If they are properly child focussed, this issue should not present problems for X.

16. Clearly, it is in X’s best interests to spend as much time with his mother as possible.  Ms J’s recommendations give practical effect to that.  Orders will be made along the lines she has recommended, save that X’s time with his mother will be confined to one visit per month, in accordance with the mother’s fall back position, unless otherwise agreed. Each visit should not be of more than one week’s duration, in accordance with Ms J’s view that X is far too young not to see his other parent for two weeks. There will also be additional orders of an uncontroversial nature as proposed by the mother.

17. The parents gave little attention to who ought to pay the costs associated with X travelling back and forth to see his mother.  As he is very young, he will clearly need an adult to travel with him for many years to come. 

18. The mother proposed in her case outline that the costs of travel be shared equally between the parents but did not elaborate on the reasons for that proposal.  It seems to me that it would be in X’s best interests for his parents to share the financial, physical and time burden of X’s travel to see his mother with the father contributing one quarter.  In a sense, that will be a greater burden for the father as he has fewer additional reasons to go to Brisbane than the mother has to come to Melbourne.  However, it is in X’s best interests to see his father facilitate X’s time with his mother.  There will be orders accordingly.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  10 April 2014