Leeds & Hopper [2015] FCCA 2191 (28 July 2015)

Last Updated: 18 August 2015

 

FEDERAL CIRCUIT COURT OF AUSTRALIA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

REPRESENTATION

 

 

 

 

ORDERS

(1) All previous parenting orders be discharged.

(2) The parties have equal shared parental responsibility for the long term care, welfare and development of their daughter X born (omitted) 2010 (“X”).

(3) In respect of each issue concerning the long term care, welfare and development of X, the Mother and Father shall:

<li “=””>(a) Consult with each other in relation to the decisions to be made; and<li “=””>(b) Make a genuine effort to come to a joint decision about the issue.

(4) Issues concerning the long term care of X include:

<li “=””>(a) Education, including primary, secondary and tertiary,<li “=””>(b) Healthcare, medical and dental issues,<li “=””>(c) Religious observance,<li “=””>(d) Sporting, cultural and social activities,<li “=””>(e) Travel including the obtaining of a passport.

(5) X live with the Mother.

(6) The Mother be permitted to relocate with X to Tasmania as from 16 January 2016.

(7) X spend time and communicate with the Father as follows:

<li “=””>(7.1) Pending relocation:
• <li “=””>(a) During school term:
  • <li “=””>(i) for the first three weekends in each four week cycle from after school (or 3:30pm) to 5:00pm Sunday; the four week cycle in term three to commence on 31 July 2015 and the four week cycle in term four to commence in the first weekend of term four.<li “=””>(ii) Each Wednesday from after school to 7:00pm.

  <li “=””>(b) In the third term school holidays 2015 from 12:00 noon the second Saturday to 12:00 noon the third Saturday of the holidays<li “=””>(c) For the first half of the long summer vacation 2015/2016 from 12:00 noon the first Saturday of the holidays to 12:00 noon Friday 15 January 2015 save that X will spend time with the Mother from 3:00pm Christmas Day to 5:00pm Boxing Day and from 10:00am to 2:00pm on X’s birthday.<li “=””>(d) Changeover for X’s time with the Father that does not take place at school shall take place at McDonald’s, (omitted).

<li “=””>(7.2) Upon Relocation:

• <li “=””>(a) each alternate weekend from 6:30pm Friday to 5:00pm Sunday to extend to 5:00pm Monday if it is a public holiday in Tasmania alternating such that X spends one weekend in Melbourne and on the subsequent weekend the Father travel to Tasmania to spend time with X.<li “=””>(b) for the second half of the Tasmanian term school holidays in Melbourne from 12:00 noon the middle Saturday to 12:00 noon the last Saturday of the holidays.<li “=””>(c) for three weeks in the second half of the long Tasmanian summer vacation 2016/2017 and each alternate holidays thereafter to conclude at 12:00 noon on the last Saturday of the holidays and commence at 12:00 noon on the Saturday 3 weeks before.<li “=””>(d) for three weeks in the first half of the Tasmanian long vacation 2017/2018 and each alternate year thereafter commencing 12:00 noon the first Saturday and concluding at 12:00 noon the Saturday three weeks later.<li “=””>(e) by telephone, Skype or Facetime if the parties have such technology each Monday and Thursday between 5:30pm and 6:00pm with the Father to telephone the number provided by the Mother for that purpose and the Mother shall ensure X is available to take the Father’s call and is able to speak to the Father privately.<li “=””>(f) as otherwise agreed between the parties in writing.

(8) The weekends that X spends with the Father pursuant to Order 7.2(a) herein shall be adjusted to ensure X is with the Mother on the Mother’s Day weekend and with the Father in Melbourne of the Father’s Day weekend.

(9) X’s time with the Father shall be adjusted to enable X to spend Easter with the Father in 2016 and each alternate year thereafter and with the Mother in 2017 and each alternate year thereafter.

(10) When X is spending time with the Father during the term school holidays, the Mother shall be permitted to telephone X between 5:30pm and 6:00pm on Tuesday and Thursday and between 5:30pm and 6:00pm on Monday, Wednesday and Saturday during the long summer vacation.

(11) The Mother shall be responsible for the costs of X’s travel to and from Tasmania when X is spending time with the Father in Melbourne pursuant to Order 7.2 (a) herein and shall provide to the Father by email a copy of X’s return ticket no less than 14 days prior to X’s departure.

(12) The Father shall be responsible for his costs of travel to Tasmania and the cost of his and X’s accommodation in Tasmania when he is spending time with X in Tasmania pursuant to Order 7.2 (a) herein and shall provide to the Mother a copy of his return ticket together with details of where he and X will be staying whilst he is in Tasmania no less than 14 days prior to his departure.

(13) When X is spending time with the Father in Melbourne during the school holidays pursuant to Order 7.2(b) (c) and (d) herein, the Mother shall pay the cost of X travelling to Melbourne and the father shall pay the cost of X returning to Tasmania and the Mother shall provide the Father by email a copy of X’s ticket no less than 21 days prior to X’s departure from Tasmania and the Father shall provide the Mother by email a copy of X’s ticket no less than 14 days prior to X’s departure from Tasmania.

(14) For the purposes of the time that X spends with the Father in Melbourne pursuant to Order 7.2 herein, the commencement time is the time X is to arrive at Melbourne airport and the conclusion time is the time X is to arrive at Launceston airport.

(15) X is not to travel as an unaccompanied minor until the third term holidays 2016 and the Mother shall accompany X prior to that time, including on school holidays, at her expense.

(16) In the event either parent intends to take X interstate when X is in that parents’ care, the travelling parent shall give the other parent a minimum of 14 days written notice of the travelling parent’s intention to travel interstate, with the travelling parent to provide full details of the trip, including duration, accommodation and contact details.

(17) Until such time as X can travel as an unaccompanied minor, changeover for the time X spends with the Father in Melbourne pursuant to Order 7.2 herein shall take place at Melbourne airport with the Father to collect X from the gate at the time of X’s arrival and deliver X to the Mother at the airline check in at the time required for check in by the carrier.

(18) The parties shall settle the spend time arrangements for the following year no later than 30 October each preceding year.

(19) When X is spending time with the Father in Tasmania pursuant to Order 7.2 herein the Mother shall deliver X to the Father’s accommodation at the commencement of time and collect her from Launceston airport 30 minutes prior to the Father’s departure at the conclusion of time unless otherwise agreed in writing.

(20) In the event X is unable to spend time with the Father in Melbourne or Tasmania on a weekend because of illness, she shall notify the Father of such illness and provide a medical certificate as soon as possible before such time and in the event X is unable to spend time with the Father on two occasions in any 6 month period, X shall spend an additional 2 days with the Father during the school holidays immediately following the missed weekends.

(21) In the event X is not made available to spend time with the Father pursuant to Order 7.2 herein on more than 2 occasions in any 6 month period, the Father shall have liberty to make an urgent application to the Court seeking Orders that X live with him, such application to be listed before Judge Bender if possible.

(22) Upon the settlement of the sale of the Mother’s property at Property K, the Mother shall place the sum of TWENTY THOUSAND DOLLARS ($20,000) into an interest bearing account to be held in trust to be used solely by her to fund the costs of X’s travel to spend time with the Father in Melbourne pursuant to these Orders and shall provide to the Father proof of the creation of such account and every 12 months thereafter shall provide to the Father a copy of the statements of that account to confirm the monies have only been used for X’s travel costs.

(23) The parties be permitted to attend all school events relating to X normally attended by parents and receive at their own expense all school reports, school photograph order forms and newsletters.

(24) Each party shall advise the other of any serious illness or injury suffered by X as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

(25) Each party keep the other informed at all times of their current residential address, contact telephone number and email address.

(26) The parties forthwith commence and maintain a communication book with respect to X and such book shall travel with X between the parties’ respective places of residence.

(27) Pursuant to section 13C(1)(c) of the Family Law Act 1975 (Cth) the Mother:

<li “=””>(a) attend and complete, as soon as practicable, a Parenting Apart post separation parenting program (“the program”) at an organisation or organisations as nominated by the Regional Co-Ordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia;<li “=””>(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;<li “=””>(c) pay and otherwise be responsible for all costs associated with the program; and<li “=””>(d) provide an appropriate certificate of completion of the program to the Father.

 

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

 

 

MLC 10328 of 2014

Applicant

And

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. This matter relates to the Mother’s application to relocate from Melbourne to Northern Tasmania with the parties’ daughter, X (‘X’) born (omitted) 2010.
2. The Father opposes the Mother’s application to relocate and seeks orders that the mother and X continue to reside in Victoria.

Background

3. The Father was born on (omitted) 1973 and is aged 41 years. The Father is in receipt of a disability pension arising from neck and back injuries caused by a work accident and more recently a motor vehicle accident. The Father has not re-partnered and currently lives with his parents.
4. The Mother was born on (omitted) 1975 and is currently aged 40 years. The Mother is engaged in home duties and is also studying. The Mother has not re-partnered.
5. The Mother was born in South Australia. At the age of five years the Mother, together with her brother Mr C, was placed in the care of the South Australian welfare authority until the age of approximately 12. Both the Mother and Mr C were sexually and physically abused whilst in the care of the State. In December 2010 the mother and Mr C both received compensation payments from the South Australian Government arising from the abuse suffered by them whilst in State care.
6. The Mother moved from South Australia to Victoria in 2004 and commenced a relationship with the father shortly thereafter.
7. The parties commenced cohabitation in (omitted) 2009 and separated in June 2010 only six months after X was born. X remained living with the Mother.
8. In (omitted) 2011 the Mother purchased a property in Property K using the compensation monies received by her from the South Australian Government.
9. When X was born the Mother was linked to services to assist her in X’s parenting. This was in part because of concerns that the Mother may develop postnatal depression given the traumas from her youth and her very recent involvement in the South Australian Royal Commission into Child Abuse suffered by parties in the State care that the Mother had been involved with. The Mother also was linked to services because X was a very unsettled baby. Initially these services were provided through Berry Street and involved what the mother called a nanny visiting the Mother and X two or three times weekly. Since the Mother and X moved to Property K the Mother has been receiving ongoing assistance from Ms K from the (omitted) office of Family Care.
10. After the parties separated they were able to put in place amicable arrangements for X to spend regular time with the Father, including overnight time. X’s time with the Father was usually alternate weekends from Friday to Sunday as well as on special occasions.
11. Whilst the parties’ relationship post-separation was not without its difficulties, it was reasonably amicable including the Father staying with the Mother in 2012 after back surgery when his family were unable to assist in his care. The Mother and X also spent Christmas and other special occasions with the Father and his family.
12. At the beginning of 2014 the Mother enrolled X in four year old kindergarten at (omitted). The Mother withdrew X from the kindergarten in (omitted) 2014 because of ongoing concerns with lice, because X, who both parties describe as a fussy eater, was not eating the food the kindergarten supplied and because the Mother took issue with the kindergarten discussing issues around fees with the Father without first discussing them with her.
13. At the same time as the Mother purchased her property in Property K, her brother Mr C purchased a four-bedroom home on 6 acres in (omitted) in Tasmania which is approximately 35 kilometres from Launceston. Mr C, the maternal grandmother and maternal stepfather all moved into the property purchased by Mr C in (omitted) in 2011.
14. In August 2014, the Mother and X visited the maternal family in (omitted) for a six-week holiday. Whilst the Mother told the Father of her intended holiday before she left, the Father was most unhappy with the length of this break. Whilst away, X only spoke to the Father on two occasions.
15. After the Mother and X returned to Victoria, X recommenced alternate weekend time with the father, albeit on the first weekend after X’s return to Victoria the Mother did not make her available to spend time with the Father on the basis that X needed time to settle back in Melbourne.
16. On 6 November 2014 the Mother’s then solicitors, who were based in Launceston, wrote to the Father to advise of the Mother’s intention to relocate to Tasmania. It would appear the Mother was in Tasmania with X when this letter was written.
17. A series of correspondences passed between the parties’ solicitors and such was the tenor of the correspondence from the Mother’s solicitors that the Father issued an urgent Initiating Application on 18 November 2014 seeking orders for the Mother and X to return to Victoria within 14 days.
18. Upon service of the Father’s Application, the Mother and X returned to Melbourne and agreement was reached for X to spend a week with the Father from 21 to 28 November 2014 as she had not, at that time spent any time with her Father for nearly eight weeks.
19. On the evening of 21 November whilst in the Father’s care, X became very distressed. The Father could not settle X so rang the Mother in an attempt to have the Mother try and calm X. X eventually settled and it would appear happily spent the remainder of the week with the Father.
20. The Mother filed a Response to the Father’s Initiating Application seeking orders she be permitted to relocate with X to Tasmania.
21. On 10 December 2014 the matter first came before the court. Interim orders were made restraining the mother from relocating with X from Victoria. The orders also restrained the Mother from enrolling X in any kindergarten or school without first obtaining the Father’s consent in writing.
22. The 10 December 2014 orders also provided for the parties to have equal shared parental responsibility for X, for X to live with the Mother and spend time with the Father for defined periods over Christmas and to commence alternate weekend Friday to Sunday with the Father from 9 January 2015 as well as telephone or Skype every Tuesday and Thursday. The matter was otherwise listed for final hearing in the relocation list on 13 April 2015.
23. On 28 December 2014, X returned to the Mother’s care after spending time with the Father from 3pm Christmas Day. The Mother having collected X from (omitted) Station went straight to the home of her friends Ms N and Mr M.
24. Upon arrival at the (omitted) home X proceeded to unpack her bag and excitedly showed the Mother and Mr M and Ms N the Christmas presents she had received when with the Father. She pulled a small blackboard from her bag as she wanted to “play school”. On one side of the blackboard written in chalk was words, “I’m losing things”, and on the other, “Yet each man kills the things he loves.”
25. X was asked whose nice writing was on the board and replied, “My daddy’s”.
26. The Mother was most distressed by these words as she perceived them as a genuine threat from the Father to harm herself and X.
27. It is noted that the Father has at all times denied writing that message on the blackboard or having any knowledge of that message being on the board.
28. It is the Mother’s evidence that when she read the message she tried to contact her solicitor in Tasmania but her solicitor’s office was closed. Accordingly, time on the weekend of 9 January 2015 took place.
29. It is the Mother’s evidence that after the weekend of 9 January 2015 she was able to speak to her solicitor who advised her to contact the police and welfare agencies and to otherwise suspend all time between X and the Father. The Mother contacted the police and Department of Health and Human Services and did not permit X to spend time with the Father.
30. On 13 January 2015 on the application of the police an interim ex parte Intervention Order was made at the Heidelberg Magistrates Court against the Father for the protection of the Mother and X. Whilst the Interim Intervention Order did not suspend the Family Law Act orders, it is the Mother’s evidence she was advised by the police and the welfare agencies to suspend time between X and the Father and accordingly did not make X available to spend time with the Father once the Intervention Order was made.
31. Because he was not spending time with X, on 6 February 2015 the Father issued a Contravention Application in the Federal Circuit Court which was made returnable on the date set for the final hearing.
32. In March 2015, after considerable consultation with Ms K and on the urging of X, the Mother enrolled X at (omitted) Primary School. It is the Mother’s evidence she had not enrolled X in school at the beginning of the year as it was not compulsory for X to start school before she turned six and because she was concerned that if X started school and was then allowed to relocate in April it would be too disruptive for X.
33. In breach of the orders made on 10 December 2014, the Mother did not first obtain the Father’s consent in writing prior to enrolling X at (omitted) Primary School. The Mother wrote to the Father’s solicitors on 9 March 2015 advising of X’s enrolment at (omitted) Primary School. It is the Mother’s evidence she believed that in writing to the Father’s solicitors to advise of X’s enrolment she had complied with the Court orders.
34. On 10 March 2015, the family report of Ms E was released. Ms E had seen the parties and X after the black board incident. In her report Ms E recommended X should be spending frequent unsupervised time with the Father.
35. Upon receipt of the family report, the Father’s solicitors wrote to the Mother’s then solicitors seeking that time between the Father and X resume in accordance with the recommendations of Ms E. Without admitting the necessity for same, the Father’s solicitors proposed a supervisor for that time in a bid to enable X to immediately resume spending time with the Father. The mother did not respond to the father’s proposal albeit it is her evidence she spoke to her solicitor and told her she did not agree with the Father’s proposed supervisor. It is the Mother’s evidence she told her solicitor that she would agree to time between X and the Father if it was supervised professionally.
36. On 10 March 2015, the police application for an Intervention Order for the protection of the Mother and X arising from the blackboard incident returned to the Magistrates Court. On that date the mother attended at the Melbourne Magistrates Court and the Father attended at Heidelberg Magistrates Court. The matter was adjourned to 11 May 2015. However on 10 March 2015 the Magistrate explained to the Mother that the orders for the Father to spend time with X made by this Court in December 2014 remained in place and that she would need to apply to the Federal Circuit Court if she wanted those orders varied.
37. The matter came before this Court for Final Hearing on 13 April 2015. Because of the then pending investigations by the police in relation to the blackboard incident, including the possibility of the police and/or the Father having a forensic handwriting expert examine the black board and the pending hearing in relation to the Intervention Order, the final hearing of the Mother’s relocation application was adjourned to 22 July 2015. The question of X’s interim living arrangements was adjourned 20 May 2015.
38. Orders were also made on 13 April 2015 for X to recommence spending time with the Father on an unsupervised basis each Wednesday from after school to 7 pm and each Sunday from 9am to 5pm.
39. On 20 May 2015 the Court was advised that a forensic handwriting analysis of the blackboard was not possible. The Court was also advised the police were not pursuing the matter any further, nor were they pursuing an Intervention Order on behalf of the mother. The Court was advised the Mother was pursuing an Intervention Order against the Father in her own right.
40. When the matter came before the Magistrates Court on 11 May 2015, it is my understanding that the Father declined to resolve the Intervention Order application on the basis of an order or undertaking without admission and the Mother would not withdraw her application for an Intervention Order against the Father. Accordingly, the Mother’s application for an Intervention Order against the Father remains listed in August.
41. On 20 May 2015, orders were also made which provided for X to spend time with the Father from 11 am Saturday to 5 pm Saturday commencing 23 May and each alternate weekend thereafter, from after school Friday to 5 pm Sunday commencing 26 June 2015 and each alternate weekend thereafter as well as every Wednesday from after school to 7 pm.
42. X has been spending time with the Father in accordance with all Orders made from 13 April 2015 onwards.

The Evidence

The Father

43. The Father relies on his affidavit sworn 30 March 2015 and paragraphs 1 to 24, 49 and 53 of his affidavit sworn 8 July 2015. The Father also gave viva voce evidence at the Final Hearing.
44. The Father also relies on the affidavits of Ms D, his sister-in-law, and his friend Mr D. Both Ms D and Mr D depose to the close and loving relationship between the Father and X and of the Father’s positive qualities as a parent. Neither Ms Leeds nor Mr D were required for cross-examination.
45. In his Outline of Case the Father sets out that he is seeking orders X remain in Melbourne, that he and the Mother have equal shared parental responsibility for X, that X live with the mother and spend time with him from Friday to Sunday in one week, Friday to Saturday in the other week, half holidays and special occasions. It is noted that the proposal for X’s time with the Father varies from the Father’s Initiating Application where he sought alternate weekend time during the school term as well as half holidays.
46. It is the Father’s evidence that he believes that it is in X’s best interests to remain living in Melbourne in the home and routine she has known all her life.
47. It is the Father’s evidence that he and X have a close and loving relationship. It is the Father’s evidence that he believes if the mother and X are permitted to relocate to Tasmania, his relationship with X will be severely compromised as the mother does not believe X’s relationship with him is of any importance and will not support or encourage that relationship. The Father questions the Mother’s compliance with any Orders that would require her to regularly bring or send X to Melbourne to spend time with him.
48. The Father points to the Mother’s actions in the last 12 months as proof of her failure to support X’s relationship with him. In particular he highlights the Mother’s six-week holiday in (omitted) 2014 during which the Mother only allowed X to speak to him twice, her refusal to let X see him immediately upon return from that holiday as the mother thought X settling back into Melbourne more important than seeing the Father and the mother’s refusal to let X see him after the blackboard incident, even after the release of the family report and the state Magistrate explaining to the mother that the spend time orders remained in place.
49. It is the Father’s evidence that the Mother also fails to consult him in relation to important matters concerning X.
50. In support of this concern, the Father refers to the Mother’s failure to consult him about enrolling X in either kindergarten or school. The Mother makes complaint the father has not contributed to the cost of glasses that have been recently prescribed for X. It is the father’s evidence he knew nothing of X being referred to an optometrist or of her needing glasses until presented with a bill by the mother.
51. It is the Mother’s evidence that the primary reason she wishes to relocate to Tasmania is to be near her mother, stepfather and brother.
52. The Father raises concerns in relation to the maternal grandmother and the mother’s brother in particular.
53. The Father questions the maternal grandmother’s poor track record as a parent such that her children needed to be placed in State care and asks what kind of role model she presents as a parent given this history.
54. The Father raises concerns about the Mother’s brother Mr C. In 2005 Mr C was involved in what is described as a “siege” when he locked himself in his own home by himself with a large quantity of alcohol and refused to come out when asked to by the police following his wife leaving him unexpectedly with his two children.
55. When cross-examined in relation to Mr C, the Father concedes he had always got on well with Mr C and had never seen him to behave inappropriately or aggressively other than to say some derogatory things about his ex-wife and the person who abused him as a child.
56. The Father questions the Mother’s financial capacity to fund monthly trips for X to spend time with him in Melbourne given she is currently reliant on Centrelink payments for her and X’s support.
57. When asked if he could afford to and would travel to Launceston once a month if relocation was allowed, as is the Mother’s proposal, it is the Father’s evidence he believed he could accommodate this. The Father however questioned whether X spending time with him in a motel in Launceston was as good as her having time with him in his own home.
58. It is apparent from the Father’s evidence that at this point in time he does not hold the Mother in any high regard. He referred to the Mother as showing him no respect, of being aggressive towards him, being very demanding, of not asking him but telling him and of putting him in very uncomfortable positions.
59. In addition to the Father’s evidence of the Mother’s attitude to him, the Father also raises concerns about the Mother’s parenting of X. His concerns relate to X missing 25 days of school this year, attending his home with a vast amount of medications, the Mother and her family smoking around X and his belief the Mother has ongoing mental health issues including depression. For these reasons, he believes it would be better for X to remain in Melbourne where he can remain a watchful presence.
60. The Father was asked if he thought the Mother was making up a story about X needing glasses to get money from him and he replied, “I think she is a very deceitful person and nothing is beyond her, including the chalk board”, presumably inferring the mother wrote the comments on the chalk board to frame him or in some way enhance her opportunities to relocate.

The Mother

61. The Mother relies on her affidavits sworn 9 December 2014, 1 April 2015 and 15 July 2016. The Mother gave viva voce evidence at the final hearing.
62. The Mother also relies on the affidavits of her Mother, X, sworn 15 July 2015, her brother Mr C sworn 15 July 2015, Ms N sworn 15 July 2015 and Mr M sworn 15 July 2015. All of these witnesses gave viva voce evidence at the final hearing.
63. The Mother also relied on the affidavit her stepfather, Mr W, sworn 15 July 2015. Mr C was not required for cross-examination.
64. It is the Mother’s application she be permitted to relocate to Tasmania with X. She proposes the parties have equal shared parental responsibility for X, that X live with her and that upon relocation X spend time with the Father each alternate weekend, with one weekend to be in Melbourne at the Mother’s expense and the other in Launceston at the Father’s expense. The Mother also proposes X spend half the school holidays with the Father in Melbourne and the cost of X’s travel for holidays be shared.
65. It is the Mother’s evidence that she wishes to relocate to live near her mother, stepfather and brother in Tasmania as she believes that it is in her and X’s best interests to live close to the support her family will provide.
66. It is the Mother’s evidence that whilst she has good friends in Melbourne, this is not the same as having the support of her family.
67. It is the Mother’s evidence that if permitted to relocate she will sell her Property K home and buy a property near her parents and brother in or near (omitted).
68. It is the Mother’s evidence that she wishes to live in the country with some acres around her so she can grow her own fruit and vegetables, raise her own animals and develop in X her own love of the country.
69. It is the Mother’s evidence she has made inquiries with the local schools in or near (omitted) and would propose X attend (omitted) Primary School which has a place for X. In relation to X’s secondary education, it is the Mother’s evidence (omitted) High School is located directly opposite (omitted) Primary School.
70. It is the Mother’s evidence that she is currently studying to be a (occupation omitted) but needs to do 12 months of placement before she is qualified. It is her evidence that she has made inquiries of the (employers omitted) in (omitted), the town nearest (omitted) with shops and services and she is able to do her 12-month placement there.
71. It is the Mother’s evidence she does not intend to relocate until she has sold her Property K property and purchased a home for herself and X in Tasmania. It is her further evidence that even if she has sold Property K and purchased property in Tasmania before the end of the year she will not relocate until the end of the year to enable both she and X to complete their school years. In the event that she has sold her Property K property before the end of the year, it is the Mother’s evidence that she and X are able to live with her godparents who live three doors down from where she and X currently live in Property K until they relocate.
72. It is the Mother’s evidence that X loves the Father and has a good relationship with him. It is the Mother’s evidence that if permitted to relocate, her proposal will ensure that X will be able to maintain her close and loving relationship with the Father into the future.
73. The Mother denies the Father’s allegations that she does not support X having a relationship with the Father. It is her evidence that she has ensured X spent regular time with the Father since separation, including a 12 month period when she did all the driving to enable X to spend time with the father after the Father lost his licence.
74. The Mother agrees that her relationship with the father has deteriorated considerably in the last 12 months, especially since she has been seeking to relocate. The Mother describes feeling threatened and intimidated by the Father who she says continually badgers her to drop her application to relocate and tells her he will then agree to a parenting plan. She describes the Father’s behaviour in this regard as “blackmail”.
75. The Mother concedes the Father was not happy when she told him she and X were spending six weeks with her family in August last year. The Mother argues that as this was the first holiday she and X had taken since X was born, she thought the holiday was reasonable.
76. The Mother however shows limited insight into how X not seeing her Father, who the Mother agrees X loves, for a period of eight weeks would have impacted on X. The Mother also shows limited insight on the impact of X only speaking to her Father twice during this eight-week period.
77. In relation to the blackboard incident, I am satisfied that the Mother genuinely believes the Father, or a member of the Father’s family, wrote the message on the board. It is the Mother’s evidence that it is the Father who packs X’s bag at the end of her time with him and that even if the Father did not write the message, the Father would have seen it and that rather than erase it, sent it to her. I am also satisfied the Mother views the message as a threat being made by the father against herself and X.
78. It is the Mother’s evidence that after reading the black board, she was advised by her then solicitor in Tasmania, the police and welfare agencies to suspend X’s time with the father.
79. When questioned as to why she had not spoken to the Father before enrolling X in kindergarten and school, it is the mother’s evidence that as X’s primary carer she knows what is best for X and that she believed she was including the Father by telling him about the decisions made by her after the event.
80. When asked how she and the Father could communicate in the future about X and the decisions that would need to be made, the Mother proposes they communicate by email and text and otherwise use a communication book.
81. In relation to the high number of days of school missed by X this year, it is the Mother’s evidence that X is asthmatic and prone to colds and flu, especially in the colder weather. It is the Mother’s evidence that X had a medical certificate for almost every day of school missed. This is borne out by the records of absences from her school.
82. In relation to the Father’s complaint that the Mother provided a vast amount of medication on one occasion when X was spending time with the Father, it is the Mother’s evidence that X had a virus which developed into pneumonia and that X then caught another virus. Whilst X had a number of medications on this occasion, it is the Mother’s evidence that they had been prescribed by X’s treating doctor.
83. The Mother smokes approximately two packets of cigarettes a week. It is her evidence she never smokes in her house and that X remains inside when she is smoking. If the Mother is in a public place such as a shopping centre, it is the mother’s evidence X is told not to stay in close proximity to the mother.
84. It is the Mother’s evidence X has a loving relationship with her maternal grandmother, step-grandfather and uncle and strongly refutes the father’s allegations they pose any risk to X.

Ms N

85. Ms N is a close friend of the Mother. Ms N swore an affidavit on behalf of the mother on 15 July 2015 and gave viva voce evidence at the final hearing.
86. It is Ms N’s evidence that on 28 December 2014 the Mother was staying with she and her husband. The Mother collected X from the Father at (omitted) Station and caught the train back to (omitted) where Ms N’s husband picked up the Mother and X and brought them back to her home. It is Ms N’s evidence that X dragged her black bag out to the porch and started to unpack her Christmas presents from her Father and his family. X pulled out a little blackboard and wanted to play teachers. It is Ms N’s evidence that she noticed writing on the board and commented, “That’s very nice writing. Who wrote that?” to which X replied proudly, “Daddy did.”
87. It is Ms N’s evidence that when the Mother saw what was written on the blackboard, the mother was most upset and tried to contact her lawyer in Tasmania. The Mother’s lawyer was unavailable. It was Ms N’s evidence that the Mother then travelled to Tasmania with X to see her family and upon her return advised that she had been told by her solicitors to speak to the Department of Human Services and the police.

Mr M

88. Mr M is Ms N’s husband. Mr M swore an affidavit on 15 July 2015 and gave viva voce evidence at the final hearing.
89. Mr M confirmed that after he collected the Mother and X from (omitted) Station and returned to his home, X pulled her black bag onto the back porch to unpack her presents. Mr M observed X to pull a blackboard from her case and wanting to play teacher. It is Mr M’s evidence that his wife told X to hang the blackboard on the door. It is his evidence the Mother noticed writing on the board and went “white.” His wife said, “That’s lovely handwriting. Who did it?” and X boastingly replied, “My daddy.”
90. It is Mr M’s evidence that the Mother tried to speak to her Tasmanian lawyer but was unable to get hold of her. In his evidence, the Mother and X went to Tasmania for their holiday and on their return the mother told him she had been advised to go to the Department of Human Services.
91. It is Mr M’s evidence he drove the Mother to the Department of Human Services and waited for her while she was in their office. When the Mother came out of the Department’s offices she told Mr M that she had been told to go to the police. Mr M then drove the Mother to the police station.
92. It is Mr M’s evidence that both he and his wife were subsequently asked by the police to make a statement and they did so on 9 February 2015.

Ms Hopper

93. Ms Hopper is the maternal grandmother. She swore an affidavit on behalf of the mother on 15 July 2015 and gave viva voce evidence at the final hearing.
94. It is the maternal grandmother’s evidence that she and the Mother now have a very close and loving relationship, although there were problems in their relationship during the Mother’s teen years arising from the Mother’s resentment of being placed in the care of the State and issues arising from the abuse she suffered when in the care of the State’s care.
95. It is the maternal grandmother’s evidence that she and the maternal stepfather live with her son Mr C in his four-bedroom home on 6 acres in (omitted). It is the maternal grandmother’s hope that within the next five years she and her husband will live independently of their son but in the same area.
96. The maternal grandmother was very honest in her evidence that she does not particularly like the Father or his treatment of the Mother, but was equally as honest when she gave evidence that as a Father, he has no shortcomings. To quote the maternal grandmother:

“I can only go by X and X loves him unreservedly and that is good enough for me.”

97. It is the maternal grandmother’s evidence that she believes the Mother feels somewhat isolated in Property K and is lonely for her family. It is the maternal grandmother’s evidence that she and the paternal grandfather will assist the mother both emotionally and financially if she were to relocate to Tasmania, including assisting in the costs of X’s travel expenses to Melbourne to see the Father.

Mr C

98. Mr C is the Mother’s brother. Mr C swore an affidavit on behalf of the Mother on 15 July 2015. Mr C also gave viva voce evidence by telephone from (omitted). He was not required to appear in person as he was in the middle of pruning the (omitted) trees on the property.
99. Mr C was cross-examined at length about “the siege” in 2005. Mr C explained he had just broken up with his ex-wife who had left him unexpectedly taking their two children. He explained he was intoxicated and refused to leave the house when requested to do so by the police until he had finished “his bottle.” Mr C was arrested, transferred to (omitted) Hospital and then spent three to six days in (omitted) and the (omitted) Ward after which he was released and sent home. No further action was taken by the police after this incident and he was not required and did not need follow-up psychiatric treatment.
100. It is Mr C’s evidence that other than seeing counsellors and psychiatrics as part of the South Australian Royal Commission into child abuse and his compensation claim, he has not required ongoing counselling since “the siege”.
101. It is Mr C’s evidence he is in receipt of a disability pension as a result of type 1 diabetes which impacts on his health and energy levels at times.
102. Mr C describes having a loving relationship with X and denies he poses any risk to her.

Ms E

103. Ms E is a Regulation 7 Family Consultant with the Federal Circuit Court. Ms E prepared a family report in this matter dated 10 March 2015 and gave viva voce evidence at the final hearing. On page 9 of her report Ms E identified the following as the issues in dispute:

26. Should the mother be permitted to relocate to Tasmania with the child?

27. How supportive is each parent to the child’s relationship with the other parent?

28. Relationship with the child with the mother and father, and

29. Psychiatric health of the mother and father.

104. Ms E answered these questions as follows.

How supportive is each parent of the child’s relationship with the other parent?

65. Mr Leeds and Ms Hopper are both resourceful people who are capable of making a positive contribution to the positive development of X. However, their present conflict is distracting them from focussing on what is best for X’s welfare, not the least of which is promoting the other parent’s relationship with her.

 

 

Psychiatric health of the mother and father

67. Both parties question the other’s mental health. Both of them have had traumatic experiences at different times, but both have made a substantial recovery. There was little in the presentation of either parent to suggest that they would not be capable of parenting responsibly.

 

68. Understandably, with her history Ms Hopper is dependent on the support of her family to feel secure. Mr Leeds also depends on his own family for support, practically and emotionally.

 

69. Mr Leeds presents as a conscientious serious minded person. He may have minimised the degree of intimidation in dealings with Ms Hopper, nonetheless there is no other evidence that he has a history of violent behaviour and the incident she reported to (omitted) occurred in the context of the deteriorating relationship five years ago. He seemed genuine in his expressed commitment to X.

 

Relationship of the child with the mother and father

70. Naturally Ms Hopper is protective of X and took action when she thought she was distressed in November 2014. However, X had not seen her father for two months and eventually he was able to calm her despite X being accustomed to sleeping with her mother every night.

 

71. X’s reaction to Mr Leeds on the day of the interview indicated an affectionate enduring attachment to him. Her welfare will depend on nurturing that relationship and co-operation between her parents.

Should the mother be permitted to re-locate to Tasmania with the child?

72. If Ms Hopper can commit to supporting the relationship between X and her father, it seems reasonable that Ms Hopper be permitted to re-locate to Tasmania once a regular schedule of time with Mr Leeds is re-established.

73. Ms Hopper has said that she is willing to stay in Victoria for six months while X spends more time with Mr Leeds and until she sells her house. It would be in X’s best interests that before re-location takes place, X is accustomed to spending overnight time with Mr Leeds. To this end, Ms Hopper will need to be strategic about helping X become used to sleeping on her own with an established pre-sleep routine so that she can settle happily overnight with Mr Leeds.

 

105. Ms E made the following recommendations in paragraph 75 to 80 of her report.
     75. The child live with the mother;
     76. the child spend time with the father as follows –
         1. for four weeks –

each Sunday from 9 am to 5pm;

each Wednesday from 4pm to 7pm;

b. for four weeks –

each Saturday from 12 noon to 10 am Sunday;

each Wednesday from 4pm to 7pm;

100. in a two week cycle until the mother relocates to Tasmania –

i. in the first week from 10 am Saturday until 4pm Sunday and Wednesday from 4pm to 7pm;

ii. in the second week from 10 am Sunday until 4pm Sunday and Wednesday from 4pm to 7pm; and

4. half the school holidays.

77. After re-location of the mother, the child spend time with the father by agreement and failing agreement as follows –
    1. each alternate weekend from 4pm Friday until 4pm Sunday;
    2. by Skype each Wednesday between 4pm and 7pm;
    100. the mother facilitate the child speaking by telephone to the father at any reasonable time she requests to do so;
    4. when the father travels to Tasmania for time with the child at the weekend, the time be extended to Monday morning;
    5. half the school holidays by agreement and failing agreement the first half in 2016 and the second half in 2017 and alternating thereafter;
78. the mother do all things to ensure the usual school notices, reports and newsletters are sent to the father and the father be permitted to attend any school activities to which he would normally be invited;
79. the mother and father utilise a Communication Book to record relevant material for the child’s routine, educational requirements, medications and the like; and
80. the mother and father furnish the other with details of location and telephone numbers where the child is to spend time.

 

106. It is Ms E’s viva voce evidence that because of her childhood abuse the Mother is very hypervigilant in her care of X which in part explains why the Mother did not send X to kindergarten or immediately enrol her in school.
107. It is Ms E’s evidence that when she interviewed the parties it was shortly after the black board incident. She described the Mother as being genuinely frightened that the Father was threatening she and X. Ms E believes the Mother’s response to this incident is linked to her hypervigilance.
108. Ms E is very clear in her evidence that she does not believe the Father to be of any risk to either the mother or X.
109. Ms E expresses some concerns about how supportive the Mother is of X’s relationship with the Father and how important she sees that relationship to be.
110. It is for this reason Ms E recommends in her report that there be at least six months of regular time between X and the Father before relocation takes place. Ms E was pleased when advised that the Mother’s evidence is she would not be relocating to Tasmania if permitted until the end of this year.
111. It is Ms E’s evidence that she remain supportive of the Mother relocating with X to Tasmania. It is her evidence that with her family around and supporting her, the Mother will be more relaxed and therefore less vigilant around X which will be in X’s best interests.
112. It is Ms E’s evidence that she believes the Mother will comply with orders for X to spend regular time with the father if relocation is allowed.
113. It is Ms E’s evidence that the Mother’s proposal for X to spend time with the Father, if relocation is allowed, will ensure that X’s current strong and loving relationship with the Father will be maintained and their relationship will continue to flourish as long as both parties commit to the proposed regular time taking place.

The Legal Approach

1. 114. In this matter the Mother is seeking to relocate with the parties’ daughter X to Tasmania to live closer to her mother, step-father and brother.
   115. Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear, however, that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined; that is, by following the legislative framework prescribed under the Act to determine what order is in the child’s best interests.
   116. In Taylor v Barker [2007] 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:
        • <li “=””>

        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: see 

        • U v U

         [2002] HCA 36; (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74;

        (2002) FLC 93-112; [2002] HCA 36 and 

        • Bolitho v Cohen

         (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.

   117. In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:
        • <li “=””>

        A “relocation case” is not a specific sub-category 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.

   <li “=””>

A relocation case falls to be determined like any other parenting case.^[1]

Best Interests of the Child

1. 118. Part VII of the Family Law Act 1975 (Cth) (“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 (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
        1. 1. The objects of this Part are to ensure that the best interests of children are met by:
              • <li “=””>

              (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

           <li “=””>

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

   <li “=””>

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

1. <li “=””>

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

• <li “=””>

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

• • <li “=””>

(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

• • <li “=””>

(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

• • <li “=””>

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

• • <li “=””>

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

• • <li “=””>

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

• 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.

120. To determine what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U [2002] HCA 36; (2002) 211 CLR 238), is in the children’s best interests.

Section 60CC(2)

121. Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:

Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents

1. 122. In Heath v Hemming (No.2) [2011] FamCA 749, Justice Kent in paragraph 104 reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104

        His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:

        • <li “=””>

        (a) s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.

        • • <li “=””>

        In 

        • • Sigley & Evor

         [2011] FamCAFC 22; (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:

   <li “=””>

(i) approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing 

1. Mazorski v Albright

 [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and 

1. McCall v Clark

 [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);

1. <li “=””>

(ii) concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in

s60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;

1. <li “=””>

(iii) confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing

1.  M v S

 [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; 

1. Godfrey v Sanders

 [2007] FamCA 102 per Kay J at [33]-[36] and 

1. Champness v Hanson

 [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);

1. <li “=””>

(iv) concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;

1. <li “=””>

Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.

123. There is no doubt that X has a meaningful relationship with both parents and that she loves and is loved by them both.
124. Further, there is no doubt that it is in X’s best interests that any orders made by this court enable her meaningful relationship with both parties to continue and grow.
125. It is the Father’s evidence that he believes that if the Mother is permitted to relocate to Tasmania with X his current loving relationship with X will be damaged as the Mother will not promote the relationship nor abide with orders for X to spend regular time with him.
126. It is the Mother’s evidence that she does recognise the importance of X’s relationship with the Father and readily acknowledges X loves her Father.
127. It is the Mother’s proposal that if permitted to relocate, X spend alternate weekends and half holidays with the Father.
128. It is the evidence of Ms E that if X spends time with the Father in accordance with the mother’s proposal, X will maintain her current meaningful, close and loving relationship with the Father.

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

129. The blackboard incident has been canvassed at length in this matter.
130. The Mother genuinely believes the message was written by the Father and is a threat to both she and X.
131. The Father denies writing the message or having any knowledge of there being such a message and, it would appear, questions whether the Mother wrote the message herself to enhance the chances of being permitted to relocate.
132. I find the evidence of Mr M and Ms N to be truthful and as such the Father’s suspicions of the Mother writing on the board herself to enhance her application to relocate to be groundless.
133. Absent forensic evidence as to whose handwriting is on the blackboard, it is not possible to make a definitive finding as to who wrote the message and whether, given its philosophical nature, the message was meant to be a “threat.”
134. What I can be satisfied of is the father love of X and that he would not seek to harm her in any way.
135. It is the clear evidence of Ms E that the Father poses no risk to X whatsoever.
136. Whilst the Father raises concerns about the Mother’s parenting, I am satisfied that they too are groundless. The mother has sensibly and appropriately engaged with all appropriate supports to assist her in her parenting of X and is to be commended rather than criticised for this.
137. I am therefore satisfied that X is not at risk of physical or psychological harm or of being subjected to abuse, neglect or family violence in either party’s care.

Section 60CC(3)

138. Section 60CC (3) of the act sets out the additional consideration the Court must consider when determining what is in the child’s best interest.
139. Each of the matters set out under that section will be considered in turn where applicable in this matter.

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.

140. It is the Mother’s evidence that X tells her she wants to live in Tasmania. It is the Father’s evidence that X tells him she wants to stay in Melbourne.
141. The reality is that X is too young to understand the implications of the proposed relocation and is, in all probability, telling each of her parents what she knows will make them happy.
142. I place no weight on what the parties report is X’s view on the relocation to Tasmania.

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).

143. As has been set out in this judgment, X has a close and loving relationship with both parties.
144. The Mother has been X’s primary carer since birth.
145. Other than the period from January to April this year when the black board incident arose, X has spent very regular time with the Father and as such she is very strongly attached to him.
146. I am also satisfied that X has a very close loving relationship with her extended paternal and maternal families having spent considerable time with all of them.

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;

(iii) to communicate with the child.

147. The Father complains, and with some cause, that the Mother has at times failed to consult with him or allowed him to participate in decisions relating to X and in particular, her education and health.
148. This in part reflects the Mother’s erroneous views that as X’s primary carer these are decisions to be made by her. It also in part reflects her hyper vigilant parenting.
149. In this matter both parties are seeking orders for equal shared parental responsibility which is supported by the report writer.
150. An order for equal shared parental responsibility will be made and that order will clearly spell out what such an order requires of the parties.

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.

151. Throughout X’s life neither party has been in employment, the mother because she is X’s primary carer and is studying and the father because he was seriously injured in a workplace injury before she was born.
152. The Father currently voluntarily pays $75 per week to the Mother for child support for X. This is twice the amount he is assessed to pay by the Child Support Agency.
153. The Mother makes complaint the Father does not otherwise contribute to the costs of X’s educational and medical expenses and appears to seek an order that the Father pay half of those costs. Such an Order cannot be made by this Court as it is not within the court’s jurisdiction to make. The parties would have to agree privately to such an arrangement.
154. I emphasise, however, that if the parties are unable to agree on this issue it has no bearing on the time X spends with her parents and cannot be used to justify time not taking place.

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.

155. If X is permitted to relocate, it will impact on the Father and his extended family’s capacity to easily participate in X’s activities outside weekend time, such as special events at schools, sporting activities and other extra-curricular activities.
156. However, the Mother’s proposal for X’s time with the Father would see the father spending time with X in Tasmania. This affords him the opportunity to be involved in X’s activities in Tasmania, including if he chose to arrive earlier or stay until Monday so that he could pick her up and take her to her school.

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.

157. Both parties in this matter are currently reliant on Social Security for their income.
158. If permitted to relocate and if orders were made as proposed by the Mother, both parties would need to fund travel between Melbourne and Tasmania.
159. There is credible evidence before the Court that with careful preplanning return airfares can be obtained for approximately $200. Accommodation costs for the Father for two nights in Tasmania would also be approximately $200.
160. It is the Father’s evidence that he believes he could accommodate this expenditure.
161. It is the Mother’s evidence that she too can budget to ensure she will fund X’s travel to Melbourne to see the father.
162. It is of concern however that the Mother has been unable to pay $400 for X’s glasses over a two-month period and at the same time, on her own evidence, spend this amount on cigarettes.
163. It is the Mother’s evidence she has received an offer for her Property K property of $440,000 and that a property she is interested in in Tasmania is on the market for $350,000.
164. In these circumstances, it would appear that the Mother shall have some capital available to her on the sale of her Property K home which could in part be put aside to ensure there is no issue that lack of funds would prevent X spending regular time with the Father in Melbourne.
165. As such, in the event relocation is allowed, orders will be made requiring the mother to place $20,000 into a trust account from the sale of her Property K property to be utilised solely by her to fund her share of the costs associated with X spending time with the Father.

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.

166. Whilst both parties have had traumatic experiences at different times in their lives, it is their evidence and that of Ms E that both have made a substantial recovery.
167. Ms E states in paragraph 67 of her report that there is little in the presentation of either parties to suggest that they would not be capable of parenting responsibly.
168. I agree with Ms E’s observation in this regard.

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

169. Not relevant in this matter.

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

170. Both parties are responsible, loving and caring parents to X and want what is best for their daughter.
171. The parties’ currently highly conflicted relationship and inability to communicate effectively is not, however, in X’s best interests and they both need to look at more effective ways to communicate and work together. X is only five and they have a lot of parenting before them.
172. The Mother is as yet to attend a post-separation parenting course and it is very clear she will benefit from this.

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

173. The Mother gives evidence of a one off incident of violence by the Father against her in 2010 when the parties separated. This is denied by the father.
174. Both parties make complaint in recent times of being verbally intimidated and disrespected by the other, which in the context of the current dispute between them is, sadly, not surprising.

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;

175. Circumstances surrounding the Mother’s application for an Intervention Order arising from the blackboard incident has been set out in detail in this judgment. The Mother’s application is next before the State court on 18 August 2015.
176. It is the Mother’s evidence she is seeking an Intervention Order as she wants the father to refrain from violent or aggressive behaviour towards her.

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

177. It is always the hope of this Court in parenting matters, where appropriate, to make orders that will see litigation cease between the parties and give them the “blueprint” that enables them to co-parent their children into the future.
178. Until the question of relocation was raised, the parties to their credit have been able to make arrangements for X without recourse to the Courts.
179. It can only be hoped that the resolution of this issue will result in the parties again being able to focus on X’s best interests and not having to come to court to work out what is best for her.

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

180. The Independent Children’s Lawyer in this matter proposes that the mother be permitted to relocate to Tasmania at the end of this year.
181. It is submitted on behalf of the Independent Children’s Lawyer that both parties are loving and capable parents, albeit they are not without their weaknesses.
182. Whilst the Father questions whether the Mother will promote his relationship with X, it is the submission of the Independent Children’s Lawyer that there is a long history of regular time between the Father and X which the Mother has facilitated. It is further submitted on behalf of the Independent Children’s Lawyer that whilst there was a period of six weeks when the mother went on holidays and did not see the Father, in a five-year history this is not particularly significant, especially as it occurred in a period of heightened tension between the parties.
183. It is submitted on behalf of the Independent Children’s Lawyer that the Mother’s proposal for X’s time with the father in the event of relocation is not only reasonably practicable given the parties’ evidence that such arrangement can be accommodated by them both, it will also enable the father to spend substantial time with X and accords with the arrangements the parties have had in place for most of X’s life.

Presumption of Equal Shared Responsibility

184. Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for the child.
185. In this matter both parties seek orders for equal shared parental responsibility. Ms E supports such an order being made and is of the view that it is in X’s best interests both her parents have input into the major decisions that will need to be made as X goes forward.
186. I agree with Ms E that it is in X’s best interests for the parties to have equal shared parental responsibility for her.
187. It is apparent, however, that the Mother has not fully understood how important it is for X that both her parents jointly make the important decisions for her, including education and health. She has in the past told the Father after she has made the decision rather than consulting with him before the decision is made.
188. It will therefore be very important going forward that the Mother and Father communicate with each other prior to such decisions having to be made.

Consideration of Equal Time or Substantial and Significant Time

1. 189. Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
   190. Section 65DAA(1) provides as follows:
        • <li “=””>

        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:

        • • <li “=””>

        (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   <li “=””>

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

1. <li “=””>

(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.

1. 191. Sections 65DAA(2) and (3) of the Act provide as follows:
        • <li “=””>

        2. If:

        • • <li “=””>

        (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

   <li “=””>

(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;

1. <li “=””>

the court must:

1. <li “=””>

(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

1. <li “=””>

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

1. <li “=””>

(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.

1. <li “=””>

3. For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

1. 1. <li “=””>

(a) the time the child spends with the parent includes both:

1. 1. • <li “=””>

(i) days that fall on weekends and holidays; and

1. 1. • <li “=””>

(ii) days that do not fall on weekends or holidays; and

1. 1. <li “=””>

(b) the time the child spends with the parent allows the parent to be involved in:

1. 1. • <li “=””>

(i) the child’s daily routine; and

1. 1. • <li “=””>

(ii) occasions and events that are of particular significance to the child; and

1. 1. <li “=””>

(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.

1. 192. Section 65DAA(5) of the Act provides as follows:
        • <li “=””>

        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:

        • • <li “=””>

        (a) how far apart the parents live from each other; and

   <li “=””>

(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

1. <li “=””>

(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

1. <li “=””>

(d) the impact that an arrangement of that kind would have on the child; and

1. <li “=””>

(e) such other matters as the court considers relevant.

193. In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between section 60CA, section 61DA(1) and section 65DAA of the Act.
194. In MRR v GR (supra), the High Court held at paragraph 9:
     • <li “=””>

     Each of sub-ss (1)(b) and (2)(d) of 

     • s 65DAA

      require 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.

195. The High Court then held at paragraph 13:
     • <li “=””>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 (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (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.

196. The High Court further held at paragraph 15:
     • <li “=””>

     “

     • 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 

     • s61DA(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.”

197. Thus, the Court must consider not only whether it is in the child’s best interests to spend equal or significant and substantial time with each of their parents but also whether it is reasonably practicable for the child to do so.
198. Neither party seeks orders for X to spend equal time with her parents and appropriately so.
199. Whilst relocation makes the logistics for X spending substantial time with the father more difficult than it would be if she remained in Melbourne, the mother’s proposal, which both parties concede they can accommodate, enables X to spend significant time with the father.

Conclusion

200. This matter relates to the Mother’s application to relocate to Northern Tasmania with the parties’ five year old daughter X.
201. It is the Mother’s evidence she wishes to be close to her mother, stepfather and brother who live on 6 acres in (omitted), a township which is some 40 minutes north of Launceston.
202. It is the Mother’s evidence that she is very close to her family and that whilst she has good friends in Melbourne, she wants the special support that her family can provide that only living close to them will make possible.
203. It is the Mother’s proposal that if permitted to relocate, X will spend time with the Father on alternate weekends with one weekend to be in Melbourne at her expense and the other in Launceston at the Father’s expense. The mother also proposes X spend half the Tasmanian school holidays with the Father in Melbourne and that she and the Father share the costs of X’s travelling to Melbourne for the school holidays.
204. It is the Mother’s evidence that the close and loving relationship X has with the Father will be maintained by X spending time with the Father in accordance with her proposal.
205. The Independent Children’s Lawyer supports the Mother’s application to relocate to Tasmania with X and is of the view that the Mother’s proposal for the time X spends with the Father is both practical and enables X to continue to spend significant time with the Father.
206. In her family report and viva voce evidence, report writer Ms E, supports the Mother’s application to relocate to Tasmania if (my emphasis) the Mother can commit to supporting the relationship between X and the father.
207. The Father is opposed to orders being made that would permit the Mother relocating to Tasmania with X as he believes the Mother has not and will not support his relationship with X.
208. It is the Father’s evidence that particularly in the last 12 months, the mother has shown a lack of commitment to X’s relationship with him. He points to the Mother taking X to Tasmania for a six-week holiday in August last year and her unilateral decision to stop all time between he and X between January and April this year following the blackboard incident as evidence of the Mother’s failure to support X’s relationship with him.
209. It is the Mother’s evidence that she has always, and will continue to support X’s relationship with the father as she recognises X loves her father and enjoys her time with him and his family.
210. It is the Mother’s evidence that she has always supported X’s relationship with the Father and has ensured X spent regular time with the Father since separation, including a period of 12 months when she did all the driving to and from (omitted) and (omitted) when the Father lost his licence.
211. It is the Mother’s evidence that the holiday she took with X in 2014 was the first real holiday she and X had together since X was born.
212. It is the mother’s further evidence that when she read the writing on the blackboard she believed it was written by the Father and constituted a genuine threat to her and X’s safety. It is the Mother’s evidence that after the blackboard incident she suspended the Father’s time on the advice of her then lawyer, the police and welfare agencies.
213. Ms E describes X as having a close and loving relationship with the Father and observed this in the interaction between X and the Father at the time of the report interviews.
214. At the time of the report interviews X had not seen the Father for over six weeks. It is Ms E’s evidence that the loving interaction between X and the Father is reflective of the very strong relationship between them which could have only existed if there had been longstanding regular interaction between the Father and X supported by the Mother.
215. It is Ms E’s evidence that the Mother is a somewhat hyper vigilant and overprotective parent. Ms E observes this not to be surprising giving the Mother’s abuse as a child. It is Ms E’s evidence that the Mother will be less vigilant if she is living close to her family, which will be of benefit to X.
216. The Father expresses further concern about the Mother’s capacity and commitment to meet the costs of X’s travelling to Melbourne to spend time with him especially as she is currently reliant on Social Security for income.
217. It is the Mother’s evidence that she has received an offer for her home in Property K of $440,000 and the property she is considering purchasing in Tasmania is listed for $350,000. In these circumstances, the Mother has capital available to her that can be set aside to ensure X’s travel costs are met.
218. Whilst there has been some recent problems with X spending time with the Father, the reality is the parties have put in place arrangements since their separation some five years ago that has ensured X has spent regular time with the Father such that she has a close and loving relationship with him. Since orders were made in April 2015 for X to recommence time with the Father, the Mother has complied with those orders to the letter.
219. I am of the view having observed the Mother in the witness box that she will comply with Court orders into the future. I am also of the view that whilst the mother has at times failed to fully appreciate the importance of X having a relationship with the Father and how important that relationship is to X, the mother genuinely understands X loves her Father and enjoys her time with him and is committed to X having a meaningful relationship with the Father into the future.
220. In all these circumstances, I am satisfied that it is in X’s best interests that the Mother be permitted to relocate to Tasmania with X.
221. It is the Mother’s evidence that she does not intend to move to Tasmania until her home in Property K is sold and she has purchased a home for herself and X in Tasmania. It is her further evidence that even if this occurs prior to the end of this year, both she and X will see out their respective school years in Victoria.
222. Even if this was not the mother’s evidence, I am of the view that it is in X’s best interests that relocation not occur until the year’s end to enable a further consolidation of X’s relationship with the Father.
223. Accordingly, Orders will be made which will enable the Mother to relocate with X to Tasmania from 16 January 2016 onwards.
224. Prior to her relocation, X will spend time with the Father during the school term for three weekends in a four-week cycle from after school Friday to 5 pm Sunday as well as each Wednesday from after school to 7 pm.
225. X will also spend time with the father in the second week of the third term holidays this year from the middle Saturday to the last Saturday of those holidays.
226. In relation to the long summer vacation 2015/2016, X shall spend the first half with the Father save that she will spend time with the mother from 3 pm Christmas Day to 5 pm Boxing Day and from 10 am to

     2 pm on X’s birthday. This time will take place in Melbourne.

227. Upon relocation to Tasmania, X shall spend time with the father as follows:
     1. each alternate weekend from 6.30pm Friday to 5:00pm Sunday to extend to 5:00pm Monday if it is a public holiday in Tasmania, this time to alternate such that X spends one weekend in Melbourne and the Father travels to Launceston to spend time with X for the following weekend time.
     2. for the second half of the Tasmanian school term holidays in Melbourne, from 12 noon in the middle Saturday to 5 pm the last Saturday of those holidays.
     100. for three weeks in the second half of the long summer vacation 2016/2017 and each alternate year thereafter, to conclude at 12 noon on the last Saturday of the holidays and commence three weeks earlier.
     4. for three weeks in the first half of the Tasmanian long summer holidays 2017/2018 and each alternate year thereafter commencing 12 noon on the first Saturday of the holidays and concluding at 12 noon the Saturday three weeks later.
228. The weekends that X spends with the Father shall be adjusted to ensure X is with the Mother on the Mother’s Day weekend and with the Father in Melbourne on the Father’s Day weekend.
229. X’s time with the Father shall also be adjusted to enable X to spend Easter with the Father in 2016 and each alternate year thereafter and with the Mother in 2017 and in each alternate year thereafter.
230. The arrangements for the long summer holidays will ensure X spends Christmas New Year and her birthday with the Father in one year and with the Mother in the following year.
231. The Father shall be permitted to telephone, Skype or Face Time, depending on the availability of the technology in each party’s home, between 5.30pm and 6pm on Tuesdays and Thursdays on a number to be provided to the Father for that purpose. The Mother shall ensure X is able to speak to the Father in private.
232. When X is with the Father during the term school holidays, the mother shall be permitted to speak to X between 5.30pm and 6pm Tuesday and Thursday and in the long summer vacation on Monday and Thursday.
233. Both parties shall enable X to telephone the other on her reasonable request to do so.
234. To better assist the parties, annexed to the orders that will be handed out at the conclusion of this judgment will be calendars for 2016 and 2017 setting out the time and place X is to spend with the Father.
235. An Order will be made requiring the parties to settle the spend time arrangements for X for the following year by no later than

     30 October in the preceding year. This will enable both parties to plan and obtain the cheapest fare for X to travel between Melbourne and Tasmania.

236. In relation to the costs of X’s travel, the Mother shall be responsible for the costs of X travelling to Melbourne to spend time with the Father during term time. The Mother shall provide the Father by email a copy of X’s return ticket no less than 14 days prior to her travel.
237. Similarly, the Father shall provide to the Mother by email a copy of his return ticket as well as details of where he will be staying with X whilst in Tasmania no less than 14 days prior to his travel.
238. In relation to the holidays, the Mother shall pay the cost of X travelling to Melbourne and the Father shall pay the cost of X returning to Tasmania. The Mother will provide to the father by email a copy of X’s ticket 21 days prior to her departure from Tasmania and the Father shall provide the mother by email a copy of her return ticket 14 days prior to her departure from Tasmania.
239. In relation to the time set out in these Orders for the time X spends with the Father, when that time occurs in Melbourne, the commencement time is the time that X is to arrive at Melbourne Airport and the conclusion time is the time that X is to land at Launceston.
240. I note Jetstar, which is the main provider of low-price flights to and from Launceston, does not allow children under 12 to fly unaccompanied. Virgin and Qantas allow a child to fly as an unaccompanied minor from the age of five. Given X’s young age, X is not to fly as an unaccompanied minor until the third term school holidays in 2016 so that she has more than ample time to become familiar with the journey. Prior to that time the mother shall accompany X during term time and in the school holidays at her expense.
241. As has been set out in this judgment, the Father has concern about the Mother’s capacity to meet the costs of X’s regular travel to Melbourne to spend time with him. Given the Mother’s current financial circumstances, I too have those concerns. As I am satisfied she will have capital available to her after the sale of her Property K home, orders will be made requiring the Mother to place the sum of $20,000 into an interest-bearing account in her name to be utilised by her solely to meet X’s travel costs. The Mother shall provide proof to the Father of the creation of this account and shall provide him with a copy of statements from that account every 12 months to confirm the moneys have only been utilised for X’s travel.
242. There will be the very rare occasion when X will be unable to travel to Melbourne to spend time with the Father or the Father will be unable to travel to Tasmania, to spend time with X because of illness. If this occurs, the parties are to notify the other as soon as the illness arises. If X is unable to travel to Melbourne because of illness, the Mother is to provide to the Father a medical certificate confirming X’s illness and inability to travel.
243. If X is unable to travel to Melbourne to spend time with the father because of illness on two occasions in any six-month period, X shall spend time with the father for an additional two days in the school holidays immediately following the missed weekends.
244. Given the Father’s concerns that the Mother will not facilitate his relationship with X and will not make X available to spend time with him, orders will also be made that in the event X does not spend time with the Father for more than two occasions in any six-month period in Melbourne, the Father shall have liberty to bring an urgent application to this court to be listed before me, if possible, seeking orders that X live with him on the basis that the Mother is not facilitating X’s relationship with him.

I certify that the preceding two hundred and forty-four (244) paragraphs are a true copy of the reasons for judgment of Judge Bender

Associate:

Date: 14 August 2015