FEDERAL CIRCUIT COURT OF AUSTRALIA
VALENTINE & ECCLES	[2015] FCCA 1260	

Catchwords: 
FAMILY LAW – Parenting – applicant seeking to relocate to (country omitted) with parties’ two children aged nine and six years.	

Legislation:
Family Law Act 1975 (Cth). ss.60B, 60CA, 60CC(2) and (3), 61DA, 65DAA, 69ZW	

AMS v AIF (1999) 199 CLR 160 
U & U (2002) 211 CLR 238
Taylor v Barker (2007) 37 Fam FLR 461
MRR v GR [2010] HCA 4
Cowley & Mendoza [2010] FamCA 597
Heath v Hemming (No. 2) [2011] FamCA 749	

Applicant:	MS VALENTINE	

Respondent:	MR ECCLES	

File Number:	MLC 3881 of 2011 	

Judgment of:	Judge Bender	

Hearing date:	23 April 2015	

Date of Last Submission:	24 April 2015	

Delivered at:	Melbourne	

Delivered on:	15 May 2015	

REPRESENTATION
Counsel for the Applicant:	Ms Brennan 	

Solicitors for the Applicant:	Richmond and Bennison 	

Counsel for the Respondent:	Mr Gates	

Solicitors for the Respondent:	Tragear and Harris Lawyers 	

ORDERS
(1)	The Application of the Mother filed 2 September 2014 seeking to relocate with the parties’ children X born (omitted) 2005 (“X”) and Y born (omitted) 2008 (“Y”) to (country omitted) be dismissed.
(2)	All previous parenting orders be discharged.
(3)	The parties have equal shared parental responsibility for X and Y.
(4)	X and Y live with the Mother.
(5)	X and Y spend time and communicate with the Father as follows:-
(a)	each alternate weekend from after school Friday to before school Monday (week one);
(b)	until Y turns seven each Wednesday from 4:00pm to 7:30pm;
(c)	upon Y turning seven in week two from after school Tuesday to before school Wednesday and each alternate week thereafter;
(d)	upon Y turning eight in week two from after school Monday to before school Wednesday and each alternate week thereafter;
(e)	for one half of the term school holidays as agreed between the parties and failing agreement for the first half;
(f)	on a week about basis during the long summer vacation as agreed between the parties and subject to X and Y being returned to the Mother one week prior to the commencement of the school year;
(g)	on Christmas Day at such times as agreed between the parties;
(h)	on Father’s Day from 9:00am to 5:00pm;
(i)	if not already spending time with the Father pursuant to these orders, on each of the Father’s, X’s and Y’s birthdays as agreed between the parties and failing agreement, if a school day from after school to 7:00pm and if a non-school day from 10:00am to 2:00pm;
(j)	by telephone no less than twice a week on days and at times to be agreed between the parties; and
(k)	as otherwise agreed between the parties.
(6)	The Father’s time with X and Y pursuant to these orders shall be suspended as follows:-
(a)	on Mother’s Day between 9:00am and 5:00pm;
(b)	on Christmas Day at such times as agreed between the parties;
(c)	if not living with the Mother pursuant to these orders, on each of the Mother’s, X’s and Y’s birthdays as agreed between the parties and failing agreement, if a school day from after school to 7:00pm and if a non-school day from 10:00am to 2:00pm.
(7)	The Father’s time with X and Y pursuant to orders 5(a), (b), (c) and (d) herein shall be suspended during school holidays and resume in the school term as if the holidays had not intervened.
(8)	Changeover that does not take place at X and Y’s school/s shall take place with the Father collecting X and Y from the Mother’s residence at the commencement of time and the Mother collecting X and Y from the Father’s residence at the conclusion of time.
(9)	Each party keep the other informed at all times of their current residential address and contact telephone number.
(10)	Each party shall advise the other of any serious illness or injury suffered by X or Y 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.
(11)	The parties be permitted to attend all extra-curricular activities and school events relating to X and Y normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.

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

FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT MELBOURNE	
MLC 3881 of 2011
MS VALENTINE 	
Applicant

And

MR ECCLES 	
Respondent

REASONS FOR JUDGMENT
Introduction 
1.	This matter relates to the Mother’s application to relocate from Melbourne to (country omitted) with the parties’ children X born (omitted) 2005 (“X”) and Y born (omitted) 2008 (“Y”). 
2.	The father opposes the Mother’s application to relocate with X and Y to (omitted) in (country omitted). The Father seeks orders that the Mother, X and Y remain living in Melbourne and that the time X and Y spend with him increase from the current regime whereby Y and X spend two nights a fortnight with him to spending five nights a fortnight with him. 
Background 
3.	The Mother was born in (country omitted) on (omitted) 1973 and is aged 41 years. The Mother has not lived in (country omitted) since 1996. The Mother initially lived in the (country omitted) for seven years and then moved to Australia. The Mother has lived in Australia since 2003. 
4.	The Mother has been employed since January 2011 on a permanent part-time basis as a (occupation omitted). She described her employment as stable. 
5.	The Mother is currently in a long distance relationship with Mr S who lives in (omitted), (country omitted). It is the Mother’s evidence that this relationship is very much in the formative stages and if permitted to relocate to (country omitted) she does not intend to live with Mr S. 
6.	The Father was born on (omitted) 1965 and is aged 49 years. He is a self-employed (occupation omitted). The Father has not re-partnered. 
7.	The parties commenced a de-facto relationship in 2003 and separated under the one roof in 2009. They physically separated in July 2010 when the Father vacated the former matrimonial home. 
8.	In May 2011 the parties filed an Application for Consent Orders seeking property and parenting orders be made. 
9.	Final property and parenting orders were made by consent by Registrar Sikiotis on 4 May 2011. The parenting orders provide for the parties to have equal shared parental responsibility for X and Y, for X and Y to live with the Mother and spend time with the Father each alternate weekend from 4:00pm Friday to 5:00pm Sunday, each Wednesday from 4:00pm to 7:00pm, for a week in the school term holidays, on a week about basis in the long summer vacation and for special occasions. 
10.	X and Y spent time with the Father in accordance with the May 2011 orders until early February 2013 when the parties agreed to extend the time they spend with the Father to 7:00pm on Sunday’s and 7:30pm on Wednesdays.
11.	In July 2013 the parties also agreed that X and Y spend time with the Father each alternate Monday from 4:00pm to 7:00pm.  
12.	It is the Mother’s evidence that in April 2012 X started telling her the Father was “strangling” him if he had been naughty. It is the Mother’s evidence she raised this with the Father at this time and he denied it happened. 
13.	It is the Mother’s evidence that during 2013 X continued to come home from time with the Father complaining that the Father had “done the strangling” when he was naughty. 
14.	It is the Mother’s evidence that when X and Y returned from holidaying in Queensland with the Father in January 2014, X again complained the Father had strangled him when he was naughty and that when the Father let him go, he fell to the floor. The Mother spoke to the children’s treating General Practitioner who advised the Mother that he was obliged to notify the Department of Human Services. 
15.	The Mother reported her concerns to the (omitted) Police who advised her to make an application for an Intervention Order. On 
23 January 2014 the Mother attended the (omitted) Justice Centre and obtained an Interim Intervention Order. 
16.	X and Y were interviewed by the police on 21 March 2014. The police interviewed the Father after X and Y had been interviewed. The police and the Department of Human Services did not take any further action in relation to this complaint. 
17.	At the (omitted) Justice Centre on 15 June 2014 the Mother withdrew her Intervention Order application on the basis that both she and the Father provided an undertaking to the Court not to physically discipline X and Y. 
18.	The Father strenuously denies the allegations that he strangled X and denies he has ever physically disciplined either X or Y. It is the Father’s evidence that X and Y love spending time with him and are not fearful of him in any way. 
19.	At the Mother’s insistence, after the making of the Interim Intervention Order, the increased time X and Y had been spending with the Father stopped and X and Y have spent time with the Father in strict accordance with the consent orders made 4 May 2011 since that time. 
20.	It is the Mother’s evidence that since the giving of the undertakings in June 2014, she has no concerns that X and Y have been or will be physically disciplined when in the Father’s care. 
21.	The Mother’s brother Mr M, his Wife Ms V, their two children A aged 7 years and B aged 5 years and the maternal grandmother have been long term residents in Australia. They lived in close proximity to the Mother, X and Y in (omitted). 
22.	In January 2014 the Mother’s brother advised her that he and his family intended to move back to (omitted), (country omitted) at the end of 2014. 
23.	In May/June 2014 the maternal grandmother advised the Mother that she was also returning to live in (omitted), (country omitted) to support the Mother’s sister, Ms S. Ms S’s husband is sadly dying of cancer. Ms S has an acquired brain injury and whilst capable of independent living, she is struggling with her husband’s illness and will struggle to properly look after herself without his support. 
24.	It is the Mother’s evidence that she has a very close relationship with her brother, sister-in-law and the maternal grandmother and has been very reliant on their emotional and practical support since she and the Father separated. 
25.	On 2 September 2014 the Mother filed her Initiating Application seeking to relocate to (omitted), (country omitted) so that she, X and Y can live close to her family and have their ongoing emotional and practical support. 
The Evidence  
The Mother
26.	The Mother relies on her affidavits sworn 1 September 2014 and 
9 April 2015. The Mother also gave viva voce evidence at the final hearing. 
27.	The Mother also relies on the Affidavit of her brother, Mr M, sworn 2 April 2015 and her mother, Ms G, sworn 2 April 2015. Both Mr M and Ms G also gave viva voce evidence at the final hearing. 
28.	The Mother is seeking Orders that the parties have equal shared parental responsibility for X and Y and that they live with her. 
29.	The Mother seeks Orders that she be permitted to relocate to (omitted), (country omitted) with X and Y. 
30.	If permitted to relocate, it is the Mother’s proposal that X and Y spend time and communicate with the Father in Australia as follows: 
a)	for one half of the long summer vacation;
b)	  for 10 days in each of the first and third term holidays; 
c)	for 1 week in the second term school holidays; 
d)	face to face at any other times as agreed between the parties; and
e)	by Skype telephone, email or other electronic means once per week or as otherwise agreed. 
31.	The Mother proposes that until X and Y are old enough to travel unaccompanied between (country omitted) and Australia, she accompany the children on each flight between Australia and (country omitted) and that the costs of the school term holiday visits to Australia be met by her and costs of the long summer vacation visits to Australia be met by the Father. 
32.	It is the Mother’s evidence that she has a very strained relationship with the Father. She describes him as controlling, abusive and domineering and she feels undermined and unsupported in her role as X and Y’s parent. 
33.	It is the Mother’s evidence that the Father denigrates her to X and Y and they have told her the Father has referred to her as “mean” and “an idiot” and said “(country omitted) are dorks.” 
34.	It is Mother’s evidence that she has a very close relationship with her brother, Mr M, his wife Ms V and in particular her own mother and that she has been very dependent upon them for both emotional and practical support, particularly since she and the father separated. 
35.	It is the Mother’s evidence that the maternal grandmother has been actively involved in X and Y’s care since they were born and that she and the children would, before the maternal grandmother relocated to Australia, see her several times in each week. It is the Mother’s evidence that the maternal grandmother looked after X and Y every Tuesday from after school until she got home from work. 
36.	It is the Mother’s evidence that she is able to work in Australia, but she is not able to receive any kind of social security or other government benefits. Such benefits are available to her in (country omitted) if she lives there.
37.	It is the Mother’s evidence that whilst she has good friends in Australia, it is her family that provide her with close support and that she has been able to call on them at any time of day or night. 
38.	It is for this reason that the Mother wishes to relocate to (omitted), (country omitted) with X and Y so that she can continue to have that level of support from her family.  
39.	As set out in detail in this judgment, it is the Mother’s evidence that X complained to her in 2012 and 2013 that the Father was “strangling” him when he misbehaved. The mother reported the matter to the police in January 2014 who advised her to make an application for an Intervention Order. An Interim Intervention Order was granted on 23 January 2014. In June 2014 the Mother withdrew her Intervention Order application upon both parties giving an undertaking to the Court not to physically discipline X and Y. 
40.	It is the Mother’s evidence since the undertakings were given to the Magistrates’ Court in June 2014, she no longer has any concern that the Father inappropriately disciplines X.  
41.	It is the Mother’s evidence that X and Y love their Father and have a close and meaningful relationship with him and with the extended paternal family. 
42.	It is the Mother’s evidence that she appreciates that if permitted to relocate to (country omitted), the relationship between X, Y and the Father will be impacted. It is her evidence however that she believes X and Y will be able to maintain their meaningful relationship with the Father and the paternal family by spending time with him here in Australia in accordance with her proposal. She also hopes the Father and his family will take the opportunity to visit X and Y in (country omitted). 
43.	It is the Mother’s evidence that she has a fledgling, long distance relationship with Mr S, but that the relationship is not the reason that she is seeking to relocate to (country omitted).  It is her evidence that if her mother, brother and sister-in-law had remained in Australia, she would not be seeking to relocate. 
44.	It is the Mother’s evidence that if permitted to relocate, she would initially live with her Mother and would look for independent accommodation for herself, X and Y once she has settled in (country omitted).  
45.	If not permitted to relocate to (country omitted), it is the Mother’s evidence that she would support orders being made that X and Y spend time with the father each alternate weekend from after school Friday to before school Monday and for there to be a continuation of a dinner with the Father each Wednesday. The Mother does not think Y, in particular, is old enough to manage spending 5 nights a fortnight away from her given her very young age and in circumstances where she has always been X and Y’s primary carer. 
46.	It is the Mother’s evidence that she would not be opposed to a 9/5 arrangement when the children, and Y in particular, are older. 
Ms G 
47.	Ms G is the maternal grandmother. Ms G swore an Affidavit on 2 April 2015 and gave viva voce evidence at the final hearing. 
48.	It is the maternal grandmother’s evidence that she lived in Australia for 23 years before returning to (country omitted) in November 2014. The maternal grandmother lived in Brisbane for 15 years where her eldest son lives and then lived in Melbourne for 8 years. 
49.	The maternal grandmother confirmed that she has returned to (country omitted) to assist her eldest daughter Ms S who has an acquired brain injury which causes epilepsy, crippling migraines and some developmental delays. 
50.	Sadly, Ms S’s husband has terminal cancer and Ms S is unable to give him the care he needs. She has also not been coping with her own care without the support of her husband.  
51.	It is the maternal grandmother’s evidence that it is not an option for she and Ms S to return to live in Melbourne when Ms S’s husband dies. Ms S has considerable medical needs, the cost of which are assisted by (country omitted) government subsidies and Ms S would not be eligible for assistance in Australia.  
52.	It is the maternal grandmother’s evidence that when she lived in Melbourne she was very involved with the mother and X and Y. She saw them on multiple occasions very week and provided considerable support to the Mother, particularly after she separated from the Father. 
53.	It is the maternal grandmother’s evidence that she has established a home in (country omitted) and if they relocate she is able to provide the Mother, X and Y with somewhere to stay until they settle in (country omitted). 
54.	It is the maternal grandmother’s evidence that since relocating she and the mother speak at least weekly, particularly as she has a deal with a local (country omitted) phone provider which enables her to make inexpensive calls to Australia. 
55.	It is the maternal grandmother’s evidence that at this point in time she has not established any form of Skype communication with the Mother, X and Y as she is not particularly computer savvy. 
Mr M 
56.	Mr M is the Mother’s brother. He swore an affidavit on 2 April 2015 and gave viva voce evidence at the final hearing. 
57.	It is Mr M’s evidence that he and his Wife made the decision to move back to (omitted), (country omitted) at the beginning of 2014 and that they moved there in January 2015. 
58.	It is Mr M’s evidence that when living in Melbourne, the Mother, X and Y would get together with he, his wife and children A and B every second weekend. He describes X and his son B as being best friends who are “very very close.” 
59.	Mr M confirmed that when initially advising people of the planned move to (country omitted) he indicated that it would be only for 12 months but that he and his family have now made the decision that the return to (country omitted) is permanent. 
60.	When questioned as to how often he has spoken to the Mother since he had moved to (country omitted), it is Mr M’s evidence it has only been 2 or 3 times. Mr M indicated he saw the Mother 2 or 3 times when she visited (country omitted) in March 2015.
61.	Mr M indicated that his wife has spoken to the Mother when his wife, the Mother and children speak to each other by Skype. He was unable to give any evidence as to the frequency of that communication. 
The Father 
62.	The Father relies on his affidavits sworn 23 October 2014 and 
14 April 2015. The Father gave viva voce evidence at the final hearing. 
63.	The Father also relies on the affidavit of his sister Ms T sworn 4 March 2015, his sister Ms I sworn 26 February 2015, his brother-in-law Mr G sworn 4 March 2015 and family friend Ms R sworn 24 February 2015. None of these witnesses were required by the Applicant Mother for cross examination. 
64.	The Father strongly opposes the Mother’s application to relocate to (omitted), (country omitted) with X and Y. 
65.	The Father seeks orders that the parties continue to have equal shared parental responsibility for X and Y, that X and Y live with the Mother and spend time and communicate with him in week 1 from after school Friday to before school Monday and in week 2 from after school Monday until before school Wednesday, for half the school holidays, for special occasions and by telephone no less than a twice a week. 
66.	It is the Father’s evidence that he has a close and loving relationship with X and Y and that they enjoy their time with him. 
67.	The Father categorically denies the allegations made by the Mother that he was physically or verbally abusive to X or Y.
68.	The Father harbours suspicions that the Mother’s Application for an Intervention Order in early 2014 was all part of a set up by the Mother in anticipation of her application to relocate to (country omitted) with X and Y. 
69.	I note that this is strongly refuted by the Mother and it is her evidence that she made the Application for the Intervention Order before she was aware that her brother and/or mother had any intention of moving back to (country omitted). 
70.	In his Affidavit sworn 20 October 2014 and in his discussions with the family report writer Mr T, the Father questioned the Mother’s evidence that the primary reason for her wishing to locate to (country omitted) is to be closer to her family and suggested it is motivated by her desire to pursue her relationship with Mr S. 
71.	In his viva voce evidence however it is the Father’s evidence that he does not believe that the relationship with Mr S is the Mother’s motivation for moving to (country omitted) with X and Y but rather her motivation is to take X and Y out of his life. 
72.	The Father agrees that he and the Mother have a very strained relationship and have real difficulty communicating. It is his evidence that this has been particularly so since the Mother obtained the Interim Intervention Order and made her application to relocate to (country omitted). 
73.	In the giving of his viva voce evidence, it was apparent that the Father remains very angry with the Mother for the making of the Intervention Order Application and application to relocate to (country omitted) and that he is very distrustful of the Mother and what he believes to be the false allegations of his abuse of X.  
74.	Despite the Father’s anger and distrust at the Mother, the Father was very clear in his evidence that he thinks the Mother is a very good mother to X and Y and she has provided them with very good care. He does not intend to challenge her ongoing role as the primary carer of the children. 
75.	It is the Father’s evidence that if X and Y are permitted to relocate to (country omitted) he believes that their relationship with him “will be finished” and that them visiting him four times a year, will not be sufficient for them to maintain a meaningful relationship with him. 
76.	It is the Father’s evidence, which is supported by the affidavits filed by his sisters and brother-in-law that X and Y have a very good relationship with him and with the extended paternal family. The Father’s sister, Ms T, has children of similar ages to X and Y and they are very close to them as they have spent time with their aunts, uncles and cousins on most weekends they are spending time with the Father. 
77.	It is the Father’s evidence that he agrees the Mother has a very close relationship with the maternal grandmother. It is the Father’s evidence that during their relationship it was perhaps too close as the maternal grandmother was a constant presence in their lives when they were together. He also confirms that X and Y have a close and loving relationship with the maternal extended family, particularly the Mother’s brother Mr M and his family. 
78.	It is the Father’s evidence that he believes the Mother will be able to maintain a relationship with her Mother and extended maternal family if she were to remain in Australia. It is his evidence that they would be able to visit the Mother, X and Y and the Mother, X and Y they would be able to visit the maternal family with the same degree of regularity that she is proposing X and Y visit him if permitted to relocate. 
79.	It is the Father’s evidence that he believes that the Mother thinks that X and Y’s relationship with their extended maternal family is more important than their relationship with him and it is for this reason that he has real concerns about the Mother continuing to promote X and Y’s relationship with him in the event that they are permitted to relocate to (country omitted). 
80.	It is the Father’s evidence that he has been attempting to negotiate with the Mother for X and Y to spend more time than they currently do for at least two years. It is his evidence the Mother keeps saying that Y is too young. 
81.	It is the Father’s evidence that he and Y have a very close relationship and that he believes that she is now more than able to manage spending time with him in accordance with his proposal. 
Mr T 
82.	Mr T is a Regulation 7 Family Consultant with the Federal Circuit Court. 
83.	Mr T prepared a family report in this matter dated 27 March 2015. He also gave viva voce evidence at the final hearing. 
84.	In his family report under the heading ‘Evaluation’ at paragraphs 134 to 139 Mr T stated as follows:
134. It is Mr Eccles’s contention that Ms Valentine is being disingenuous in claiming that the main reason she seeks to relocate is to re-join maternal family members. He claims Ms Valentine is in a relationship with a man resident to (country omitted) and that she simply has not disclosed this fact.
135. It is respectfully suggested that Ms Valentine’s motivations and reasons for seeking the relocation may need to be examined in court.
136. What has become clear during the preparation of the report is that both children and, particularly, 9-year-old X, have been heavily involved in the mother’s plans to relocate. Indeed, in the case of X, the child seems to feel a sense of responsibility for the relocation decision, by quite possibly and mistakenly, wishing to make his mother happy. This is a very confusing and invidious position for the child to be placed in.
137. It has also become clear during the preparation of the report that both children have an attachment to their father, Mr Eccles. This has been particularly evident in the case of Y, but also evident in the case of X; although, it is felt X’s position may have been somewhat compromised by his undoubted loyalty to his mother.
138. Looking at the family’s situation in the whole, it is this writer’s opinion that there is no pressing need for Ms Valentine to relocate to (country omitted) with the children; certainly, against the obvious attachments of the children to their father, and Mr Eccles’s close bond with them.
139 .The decision with respect of the proposed relocation will of course be the court’s. However, it is suggested that if the court decides that the children remain in Melbourne, that consideration be given to increasing their time with their father; possibly by extending the alternate weekends and the introduction of holiday time.
85.	Under the heading ‘Recommendations, Mr T stated the following at paragraphs 140 to 146: 
140. That there be a judicial decision about Ms Valentine’s application to re-locate to (country omitted) with the children.
141. That Mr Eccles and Ms Valentine share parental responsibility for the long-term care, welfare and development of X and Y.
142. That X and Y continue to live in their mother’s primary care.
143. That X and Y spend time with their father as they presently do on alternate weekends during school terms, plus Wednesdays after school, but with consideration given to extending the alternate weekends to Monday morning.
144. That X and Y spend time with their father for 1 week of the school term holidays, plus for half of the long summer vacation, but with no period exceeding 10 consecutive days.
145. That there be liberal telephone and internet contact between the children and their father and vice versa at reasonable times.
146. That, if they have not already done so, each of the parents separately undertake and complete a post-separation parenting course.
86.	When giving his viva voce evidence Mr T was asked by Counsel for the Mother the following: 
“Ms Valentine’s case is, and she tells you this, that her fundamental support since the children were born and during this difficult time, especially recently, she has been very reliant, particularly on her mother, but also on her brother and his wife.  That’s her evidence.  And Mr Eccles agreed with that.  So in circumstances where this relationship continues unabated to be conflictual, what I’m suggesting to you is that any parent, but in particular the primary parent, really will have a need for close emotional supports from the people who understand her situation, who she won’t be embarrassed to go to, and who she can call on at any time?” 
87.	Mr T answered: “yes”. 
88.	Counsel for the Mother then asked Mr T:
“…was it your understanding that those supports were her mother and her brother and her sister, and they have now gone to 
(country omitted) to live?”
89.	Mr T answered:
 “Yes. They were her main previous supports, I think. Yes”. 
90.	Counsel for the Mother put to Mr T the following question:
“And in the course of the interview it was made – it would appear to me it was very clear from what Ms Valentine said that that has left her very distressed and she’s finding it very hard?” 
91.	Mr T answered “that’s what she said… told me. Yes.” 
92.	Counsel for the Mother then put the following propositions to Mr T:
“So if her Honour were to make the order that the mother seeks to allow her to relocate with the children to (country omitted), obviously, X and Y will be spending less time with their father and the frequency of their time changes…. And that would be an obvious inevitability in a case such as this where someone is proposing to make a move involving that distance?” 
93.	Mr T answered “of course, yes.” 
94.	It was then put to Mr T by Counsel for the Mother:
“…given the close relationship that the children have formed with their father in the difficult circumstances, I would suggest to you that there’s nothing in the children’s presentation or expressed sentiment that would suggest that they wouldn’t be able to sustain and maintain in – for them the importance of the relationship and the significance of the relationship they have with their father.  I’m not talking about the time spent.  I’m talking about the quality of it.  It will still remain a very, very significant relationship for them, I would suggest, despite those changes, if they are made?
95.	Mr T answered “yes, I can agree with that”. 
96.	Mr T was then asked whether he had formed a view that the Mother would actually facilitate the relationship between X and Y and their father if relocation was permitted. Mr T’s evidence as follows: 
“…I did.  I think – I didn’t get the impression from 
Ms Valentine that she would withhold the children from contact with their father within the agreed parameters.  I did not get that impression.  But I’m mindful that – and I think it’s acknowledged in court – that the relationship between the two parents is very poor and the communication is almost – you know, the parental relationship communication is almost non-existent.  So that’s a weakness, a very big weakness here, even if this family was living in Melbourne, on different sides of Melbourne.” 
97.	Counsel for the Father then suggested to Mr T:
“ …there is a real difference between staying within the parameters of a court and merely giving lip service to an order as opposed to actively encouraging a relationship...” 
98.	Mr T agreed with that proposal. 
99.	Counsel for the Father then suggested to Mr T that the Mother would do no more than give lip service to the relationship and simply stick to the terms of the Court order. 
100.	Mr T responded as follows: 
“You could be correct about that.” 
101.	Counsel for the Mother then challenged Mr T on this evidence and put to him the following: 
“…couldn’t it just as easily be said that because of the total lack of trust and goodwill between these parents which has been going on for some time that, if she weren’t prepared to facilitate – if the mother weren’t prepared to facilitate a strong relationship with the children it would be unlikely that it would be as strong as it is.  She has to have been promoting the father to them for it to be as strong a relationship as it is?” 
102.	Mr T responded “Yes. I think that is also true, yes, yes.”
103.	It was then put to Mr T by Counsel for the Mother that the Mother’s everyday functioning is not going to be any different whether she is Melbourne or (country omitted) in relation to her promotion of the children’s relationship with the Father. Mr T agreed with that proposal. 
The Legal Approach
104.	It is the Mother’s application in this matter that she be permitted to relocate to (omitted), (country omitted) with the parties’ children, X and Y. 
105.	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 a child’s best interests.
106.	In Taylor v Barker (2007) 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:
	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) 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.
107.	In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:
	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.
A relocation case falls to be determined like any other parenting case.
Best Interests of the Child 
108.	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.	The objects of this Part are to ensure that the best interests of children are met by: 
	(a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and 
	(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and 
	(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and 
	(d)	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
	2.	The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests): 
	(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and 
	(b)	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and 
	(c)	parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and 
	(d)	parents should agree about the future parenting of their children; and 
	(e)	children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
109.	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.
110.	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) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
111.	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. 
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
112.	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:
	 (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.

	In Sigley & Evor (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:
	(i)	approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);
	(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;
	(iii)	confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 
93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);
	(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;
	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.
113.	X and Y have a close and loving relationship with the Mother who has been their primary carer since birth. 
114.	X and Y also have a close and loving relationship with the Father and whilst the parties separated when X and Y in particular were very young, the parties have, to their credit, ensured that X and Y have spent time with the Father on a weekly basis. 
115.	In his viva voce evidence Mr T confirmed that if relocation was allowed, X and Y would be able to sustain and maintain the important relationship they have with the Father, albeit that relationship would be impacted because of their inability to spend the regular weekly time that they currently enjoy. 
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
116.	X and Y have not been exposed to any psychological or physical harm in their Mother’s care. 
117.	The Mother makes allegations that in 2012 and 2013 X complained to her that the Father “strangled” him when he was naughty. The Father adamantly denies that this occurred. 
118.	Both parties were questioned about these allegations during the hearing of the matter and were open to considering the possibility that X may have been exaggerating or telling the Mother that this had occurred in an endeavour to engender sympathy from the Mother or to play off one parent against the other. 
119.	The Father also gave evidence that he believed it was possible that the Mother was fabricating these allegations as part of a strategy to better support her application to relocate with X and Y to (country omitted). 
120.	Mr T, did not question X in relation to these allegations as he formed the view that X was already anxious about the report writing process and he did not believe this issue to be central to the question of relocation. 
121.	It is the Mother’s clear evidence that since the giving of undertakings by both parties to the Magistrates’ Court in June 2014 that they would not physically discipline either X and Y, she has no concerns that either X or Y are at risk of any physical harm in the care of the Father. 
122.	The Mother alleges that the Father at times exposes X and Y to his negative view of the Mother and that they have reported to her the negative comments that he has made. 
123.	The Father denies making negative comments to X and Y in relation to the Mother. The Father though he did concede that at the time of the Intervention Order proceedings, X and Y may have overheard him discussing this issue with his family members and that during those discussions he was critical of the Mother and questioned her motivation in making the application for the intervention order. 
124.	I am satisfied that neither X nor Y is at risk of any physical harm of being exposed to any psychological or physical harm in the Father’s care.
125.	The parties have a highly conflicted relationship and both concede to having real difficulty trusting or communicating with the other. 
126.	Whilst the parties seem to have done a reasonable job in shielding X and Y from the extent of their dislike of the other, it is difficult to believe that X and Y are not conscious of their parents conflicted relationship. It will be vitally important into the future that they continue to endeavour to shield X and Y from that dislike as a failure to do so will impact on X and Y’s emotional and psychological wellbeing. 
Section 60CC(3)
127.	Section 60CC (3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interest. 
128.	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.
129.	When speaking to X during the preparation of the family report, Mr T offered X three wishes. The third of X’s wishes was that “the problem would be over.”  Mr T asked X what the problem is, it became very clear that for X “the problem” is the Mother’s proposal to relocate to (country omitted). 
130.	In paragraph 115 of his report, Mr T states that X told him that he was in two minds about going to (country omitted) saying he: “half decided to go, and half to stay.” 
131.	Mr T then sets out in paragraph 116 the following: 
116. X then seemed to straightaway reconsider what he said, telling the writer, “Really, really go to (country omitted), coz my family is more important”. When the writer intimated that maybe his mother told him what he should say, the child responded, “Not one little bit”.
132.	In paragraph 117 of his family report Mr T further expands on what X discussed with him in the context of “our problems”. Mr T sets out that X told him “we want to go to (country omitted) and dad is stopping us. Like my family all moved to (country omitted)”.
133.	In his family report Mr T states that it is quite clear that X has discussed the proposal to move to (country omitted) with his Mother. Mr T indicated that X has been heavily involved in the Mother’s plan to relocate and that X seems to feel a sense of responsibility for the relocation decision by quite possible and mistakenly wishing to make his Mother happy. 
134.	Mr T notes that this is a very confusing and invidious position for X to have been placed in. 
135.	In relation to Y, Mr T sets out in his report that she understood that the reason she was speaking to him was to do with “(country omitted).” 
136.	In paragraphs 127 and 129 Mr T sets out the following exchange between himself and Y in relation to the question of relocation: 
127. She told the writer, “I want to go, and, if I don’t get to go, I’ll feel sad”. When asked what she thought X wanted to do about the move to (country omitted), Y equivocated, first telling the writer he “probably” wants to go, but then adding that her brother had told her, “yes”.
129. Y told the writer that, whereas going to (country omitted) makes her feel “pretty sad”, she still wants to go. And, why does she want to go to (country omitted), because, “I want to see my family”, which she explained includes, “Nanna, A, B, Uncle Mr M and Aunty Ms V”. Again, as in the case of X, it seemed clear that 6-year-old Y has been involved in discussions about her mother’s proposal to move to (country omitted).
137.	In paragraph 130 of his report Mr T makes the following observations in relation to Y’s expressed view on the question of relocation to (country omitted): 
130. Of course, at the same time, because of the child’s young age, despite what she told the writer, Y can have no real understanding about the practical implications and effects of relocation; how for example she might miss her father, to whom it is clear the child is strongly attached.
138.	When giving his viva voce evidence, Mr T was asked whether he had formed a view as to the genuineness or otherwise of X’s support of relocation to (country omitted). 
139.	It is Mr T’s evidence that he did not accept X’s wishes to go to (country omitted) as being genuine but rather relating to X’s wish to please the Mother. 
140.	Mr T stated that whilst he did not believe that the Mother had intentionally coached or overtly influenced X to express the view that he wished to relocate to (country omitted), he was of the belief that X is very aware that the Mother wishes to relocate to (country omitted) and that his support of the relocation is a direct result of him wanting to please or support the Mother rather than this being a reflection of what X himself genuinely wants. 
141.	Given Y’s young age and Mr T’s view that X is saying he wishes to relocate to (country omitted) to please and support the Mother rather than this being a genuine reflection of what X wants, I am of the view that little weight can be placed on X and Y’s statements to Mr T that they want to relocate to (country omitted). 
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).
142.	X and Y have a close and loving relationship with their Mother who has been their primary carer since birth. 
143.	As observed by Mr T in his family report at paragraph 45:
45.“the general interaction between the children and their Mother was entirely unremarkable; unremarkable in the important sense it was as one might anticipate where a parent has had continuous primary care of children throughout their lives. He observed the children to be relaxed and familiar in their Mother’s company as she was with them.” 
144.	X and Y also have a close and loving relationship with the Father. 
145.	In his family report at paragraph 137, Mr T sets out that it was clear during the preparation of the report that both children have an attachment to their Father. He observed this to be particularly evident in the case of Y and also in the case of X, although he felt X’s position to be somewhat compromised by his undoubted loyalty to his Mother. 
146.	Both parties agree that X is an intelligent but somewhat sensitive little boy who is very attached to and quite protective of the Mother. Both describe him as having assumed the role of “man of the house” since the parties separated and of him being very attuned to his Mother and keen to be seen to be supporting her in order for her to be happy. 
147.	In his viva voce evidence, Mr T indicated that when he asked him whether he had any sad feelings, X’s reply was “no but, but only when mum cries, I feel sad.” 
148.	Both parties agree that X and Y have very close and positive relationships with their extended maternal and paternal families. 
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.
149.	The Father makes complaint that the Mother has not always involved him in the making of decisions for X and Y’s long term care. He cites by way of example the fact that he did not know that both X and Y are currently having counselling until the Mother gave evidence to that effect during the course of the hearing of this matter. 
150.	The Mother makes complaint that the Father does not take an active interest in X and Y’s schooling and cites by way of example that he has only attended one parent teacher interview since they started school. 
151.	In response to this complaint, the Father gave evidence that the Mother has not notified him of X and Y’s parent-teacher interviews and other such events. The Father however conceded he had access to the school website and that he could have made his own arrangements for parent-teacher interviews and to receive school photos and the like and had failed to do so. 
152.	As previously set out in this judgment, X and Y have spent regular weekly time with the Father since the parties physically separated in 2010. 
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.
153.	Both parties have properly maintained X and Y throughout their lives. 
154.	It is common ground that since separation the Father has paid the Mother $200 per week by way of child support and has done so even during periods when there was a downturn in his business. 
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.	In the event that X and Y are permitted to relocate to (country omitted) they will not be able to spend regular weekly time with their Father or with their extended paternal family. 
156.	The Mother’s proposal would see X and Y spending time with their Father in Australia during school holidays only, though she is more than amenable to X and Y spending time with the Father in (country omitted) upon the Father giving her reasonable notice of his intention to travel there to see the children. 
157.	It is the Father’s evidence that he believes that if X and Y are permitted to relocate to (country omitted), that he will not have a relationship with them. In his viva voce evidence he stated their relationship “will be finished if relocation occurs.” It is the Father’s evidence that it is not possible to maintain a relationship that has any meaning if he, X and Y only see each other on four occasions each year. 
158.	It is the Mother’s evidence that she believes that X and Y will be able to maintain a meaningful relationship with the Father through spending time with him during each of the school holidays and also through regular telephone and Skype communication. 
159.	Mr T was questioned about the efficacy of Skype communication, particularly for young children given young children quickly lose interest when communicating by phone or Skype as they are distracted by what is happening at their end of the world. 
160.	Mr T said it would be quite hard for a young child to sustain a phone or Skype conversation for an hour. When questioned further, Mr T indicated that whilst Skype or telephone communication could take place twice weekly it would become very onerous if there was an expectation that the child was to speak to the parent at the other end of the phone or computer for up to an hour. 
161.	In his family report at paragraph 119, Mr T sets out that when he asked X what the effect would be of a move to (country omitted) in terms of the time he spends with his Father, X replied:
  “We would not see much of him, but it would be more exciting when we did meet him”. 
Section 60CC (3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
162.	If the Mother is permitted to relocate to (country omitted) with X and Y then quite clearly X and Y’s ability to spend anything other than school holiday time with their Father in Australia is totally impractical. 
163.	Both parties agree that the travel time for Y and X between (country omitted) and Melbourne is six hours. There is a 3 hour drive between (omitted) and (omitted) and the flight between (omitted) and (omitted) is 3 hours. 
164.	There are regular and relatively inexpensive flights between (country omitted) and Melbourne and the Mother’s proposed travel arrangements would not be too exhausting or difficult for X and Y to manage. 
165.	If the Mother, X and Y remain in Melbourne, they live in very close proximity to the Father and there are no practical difficulties associated with them 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.	I am satisfied that both parties have and will continue to meet the emotional and intellectual needs of X and Y. 
167.	Both X and Y are described as delightful young children who are currently meeting all of their milestones. 
168.	Mr T described X as being somewhat anxious and attributed this to X becoming overly involved in the issue of relocation and to him thinking that he somehow bears the responsibility for having to make the decision about whether relocation takes place.
169.	It is Mr T’s evidence that once a decision is made about X’s future living arrangements, whether that be he moves to (country omitted) or remains in Melbourne, X will be a greatly relieved little boy as the conflict will abate and his sense of anxiousness and confusion will be alleviated. 
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
170.	The Mother was born in (country omitted) and is proposing a return to (country omitted). 
171.	The Mother however has not lived in (country omitted) for nearly 20 years and she did not spend any time in (country omitted) between 1996 when they left (country omitted) and 2013.  
172.	Both X and Y were born in Australia and have never been to (country omitted). 
173.	X has attended (omitted) Primary School since he started school. He is now in Grade 4. X told Mr T, the report writer, he has heaps of friends, intimating that this may be as many as 30. 
174.	Y is in grade 1 at (omitted) Primary School and she also reports having lots of friends. 
175.	X is a keen sportsman who is actively involved in playing AFL football and soccer outside of his school. 
176.	If relocation is allowed to (country omitted) both X and Y would be taken from their friends, their school and extra-curricular activities and of course young X would not be able to pursue his AFL career in (country omitted). 
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
177.	Both parties in this matter have fulfilled their responsibilities as parents to X and Y. 
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family.
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; 
178.	As previously set out in this judgment, the Mother alleges that the Father used inappropriate physical discipline on X in 2012 and 2013 by “strangling” him. This is an allegation adamantly denied by the Father. 
179.	In January 2014 an Interim Intervention Order was made against the Father, however this was withdrawn by the Mother in June 2014 when both parties gave a mutual undertaking to the Court not to physically discipline either X or Y. 
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
180.	The parties in this matter entered into consent orders in 2010 and had been able to mutually agree to slight variations to those Orders without recourse to the Court. 
181.	After the Mother made application for the Intervention Order in January 2014, the Mother insisted that X and Y’s time with the Father reverted to that provided for in the consent orders made in 2010. 
182.	It is the Father’s evidence that he has continually tried to negotiate additional time between himself, X and Y with the Mother without success. 
183.	The Father had not however sought to pursue an increase in time through the Court and one can posit that absent the Mother’s application for relocation, the parties may well have avoided litigation. 
184.	It is hoped that with the resolution of the relocation issue, the parties will not have need to have recourse to the Court in the future. 
Section 60CC (3)(m) any other fact or circumstance that the Court thinks is relevant.
185.	When the Mother was being cross examined she was asked what she had told the children about the reasons she wanted to move to (country omitted). It is her evidence that X and Y “know the reasons.” When asked to explain what those reasons are, she explained that it is because she wants to be with her family and she wants X and Y to be with her family. 
186.	The Mother was asked whether she had told the children that she would be sad if she was not permitted to relocate to (country omitted).  The Mother indicated that she had not told them she would be sad, but X and Y understand that that is how she would feel as they are very close to her. 
187.	It was then put to the Mother that X and Y being aware of her sadness would put them under some degree of pressure. The Mother agreed this was so but indicated that she could not keep her sadness from them as she wants to go to (country omitted) and be with her family.  
188.	The Mother then said:
 	“…they (being X and Y) understand what family is”. 
189.	When speaking to Mr T, X told him he “really, really wants to go to (country omitted), because my family is more important.” X then said to Mr T:
“We want to go to (country omitted) and Dad is stopping us…..like my family all moved to (country omitted).” 
190.	When Y spoke to Mr T she also told him she wanted to go to (country omitted) because “I want to see my family” and she explained to him that this included “Nanna, A, B, Uncle Mr M and Aunty Ms V.” 
191.	The Mother’s evidence raises a real concern that she considers X and Y’s relationship with the maternal family not only being of greater importance to X and Y than their relationship with the paternal family but that the Father and the extended paternal family are not X and Y’s family. 
192.	X and Y’s comments to Mr T are also very concerning as it would appear that they are starting to reflect the Mother’s views that the maternal family only are their family and that their relationship with their Father and extended paternal family is not as important as the relationship with the Mother and her extended family. 
193.	Mr T asked X why X thought he was speaking to him, X told him it was to discuss “our problems.” 
Presumption of Equal Shared Responsibility 
194.	In this matter both parties propose that the order that they have equal shared parental responsibility for X and Y made on 11 May 2011 continue. 
195.	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.
196.	Whilst both parties give evidence of the difficulty they have in communicating with each other and the Father raises concerns that the Mother does not always consult him in relation to the decisions for X and Y, it is apparent from the intelligent and well-rounded children that they are, that these parents have been generally parented their children well.
197.	I am therefore satisfied in this matter that the parties should continue to have equal shared parental responsibility for X and Y. 
Consideration of Equal Time or Substantial and Significant Time 
198.	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. 
199.	Section 65DAA(1) provides as follows:
	1.	If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must: 
	(a)	consider whether the child spending equal time with each of the parents would be in the best interests of the child; and 
	(b)	consider whether the child spending equal time with each of the parents is reasonably practicable; and 
	(c)	if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
200.	Sections 65DAA(2) and (3) of the Act provide as follows:
	2.	If: 
	(a)	a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
	(b) 	the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;  
	the court must: 
	(c)	consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and 
	(d)	consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
	(e)	if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
	3.	For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if: 
	(a)	the time the child spends with the parent includes both: 
	(i)	days that fall on weekends and holidays; and 
	(ii)	days that do not fall on weekends or holidays; and 
	(b)	the time the child spends with the parent allows the parent to be involved in: 
	(i)		the child’s daily routine; and 
	(ii)	occasions and events that are of particular significance to the child; and 
	(c)	the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
201.	Section 65DAA(5) of the Act provides as follows:
	5.	In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
	(a)	how far apart the parents live from each other; and
	(b)	the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and 
	(c)	the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and 
	(d)	the impact that an arrangement of that kind would have on the child; and
	(e)	such other matters as the court considers relevant.
202.	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. 
203.	In MRR v GR (supra), the High Court held at paragraph 9: 
	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.
204.	The High Court then held at paragraph 13:
	Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (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.
205.	The High Court further held at paragraph 15:
	“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. 
The presumption in 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.”
206.	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. 
207.	If the Court is satisfied that it is in X and Y’s best interests to relocate to (country omitted), then it will not be reasonably practicable for X and Y to spend equal or significant and substantial time with the Father. 
208.	In the event that X and Y remain in Melbourne, neither party is seeking Orders that they live equally with both of their parents. However, both parties have put forward proposals that would ensure that X and Y spend significant and substantial time with the Father. 
Conclusion 
209.	This matter relates to the Mother’s application to relocate to (omitted), (country omitted) with the parties’ children, X aged 9 years and Y aged 6 years. 
210.	The Father opposes the Mother’s application to relocate and instead seeks Orders that X and Y remain living in Melbourne and that the time that they spend with him increase from the current arrangement of 2 nights a fortnight to 5 nights a fortnight. 
211.	The Mother has not lived in (country omitted) for nearly 20 years having spent 7 years in the (country omitted) and the last 12 years in Australia. 
212.	The Mother’s brother Mr M, his wife Ms V and their two children, A aged 7 years and B aged 5 years, together with the maternal grandmother have also been long term residents in Australia. 
213.	It is the Mother’s evidence that she, her Mother and her brother and his family are very close. It is her evidence that her family and particularly the maternal grandmother have been very supportive of she, X and Y particularly since the parties separated in 2009. 
214.	In January 2014 the Mother’s brother advised the Mother that he and his family were moving back to (country omitted) at the end of 2014. 
215.	In May 2014, the maternal grandmother advised the mother that she too would be returning to (country omitted) to support the Mother’s older sister, Ms S. 
216.	Most tragically, Ms S’s husband has terminal cancer. Ms S has an acquired brain injury and is not able to properly to care for her ailing husband or, upon his death, for herself. For these reasons the maternal grandmother made the decision that she needed to return to (country omitted) to support her daughter. 
217.	It is the Mother’s evidence that she and the Father have a very difficult relationship. She describes him as abusive, controlling and domineering and that she feels undermined by him in the context of her parenting of X and Y. 
218.	It is the Mother’s evidence that she is, and has always been heavily reliant upon her Mother to not only assist her emotionally and physically in the care of X and Y, but also to support her in navigating her post separation parenting relationship with the Father. 
219.	For these reasons, the Mother is seeking to relocate to (country omitted) so that she can live in close proximity to her mother, brother and sister-in-law so that she, X and Y can continue to have their ongoing practical and emotional support. 
220.	The Father denies the allegations made by the Mother in relation to him being abusive, domineering or undermining of the Mother’s parenting. He concedes that theirs is a conflicted relationship and that they have difficulty in communicating, particularly in the last 18 months since the Mother made what he believes is an unfounded application for an Intervention Order and the current application to be able to relocate to (country omitted). 
221.	It is the Father’s evidence that he believes that the Mother’s application to relocate to (country omitted) is predominantly motivated by her wish to exclude him from the lives of X and Y and that if X and Y are permitted to relocate, that will see the end of any form of meaningful relationship between he and his children. 
222.	The Father also raised in his material his belief that another factor motivating the Mother’s application to relocate to (country omitted) is her emerging relationship with Mr S, a native of (omitted), (country omitted). 
223.	Whilst the Mother does not deny that she and Mr S have a long distance relationship, it is her evidence that she and Mr S have no immediate plans to further their relationship or any intention that if she were to be permitted to relocate that they would commence cohabitation. She was not, however, denying that if permitted to relocate to (omitted), (country omitted) that her relationship with Mr S may well progress beyond that which it currently is. 
224.	X and Y have lived in the primary care of the Mother for all their lives and it is to her that they are most closely attached. This particularly so for X who is very attuned to his Mother having assumed the role of “man of the house” since the parties separated. 
225.	X and Y have a close and loving relationship with the Father and Y in particular is very close to him. 
226.	X and Y were both born in Australia and have lived in Australia all their lives. Neither have ever visited (country omitted). 
227.	X is nearly 10 years old and is in grade 4. He has attended (omitted) Primary School for the entirety of his education. X is also a keen football and soccer player. X told Mr T that he has “heaps of friends,” probably 30 at school and through his sport.
228.	Y is in grade 1 at (omitted) Primary School and she too describes having lots of friends. 
229.	When spending time with the Father, X and Y spend considerable time with their paternal aunts and uncles and their cousins of the same age. 
230.	Mr T does not support X and Y relocating to (country omitted). In his family report he concludes that there is no pressing need for the Mother to relocate to (country omitted) with X and Y and states this is particularly so when measured against the obvious attachment that X and Y have with their Father and the Father’s very close bond with them. 
231.	It is Mr T’s viva voce evidence that in the event relocation is allowed, both X and Y will be able to maintain a strong relationship with the Father given their existing close relationship.
232.	The tension between a parent’s wish to pursue their own life and happiness and the entitlement of a child to have a meaningful relationship with both of his or her parents lies at the very heart of the real difficulty this Court faces when determining matters of this type. 
233.	This tension becomes even more pronounced the greater the distance of the relocation because of the practical difficulties in putting in place arrangements that will enable the child to spend regular weekly or even monthly time with both his or her parents and to enable both parents to have an active involvement in the child’s day to day life. 
234.	Ultimately, however the living arrangements for, in this case X and Y, must be determined in accordance with the provisions of the Act and therefore on the basis of what it is in their best interests. 
235.	In this matter, the Mother understandably is most distressed in losing the day to day physical presence and support of her family and particularly that of her mother, as her mother, brother and sister-in-law have moved back to (country omitted) from Melbourne. 
236.	I am satisfied that the primary reason the Mother is wishing to relocate is to live near her family and that she is not in any way motivated in her application by a desire to exclude the Father from X and Y’s lives.
237.	Since separation, X and Y have spent regular weekly time with their Father and there is no allegations made that the Mother has in any way sought to interfere or disrupt that time. 
238.	When giving her evidence it is apparent that for the Mother, the relationship that X and Y have with the maternal family is of greater importance in her mind than X and Y’s relationship with the Father. This is reflected in comments made by X to Mr T. Mr T reports X as saying:
“really, really go to (country omitted), because my (my emphasis) family is more important”. 
X also told Mr T:
“we want to go to (country omitted) and dad is stopping us….like my (my emphasis) family all moved to (country omitted).” 
239.	This is also reflected in comments Y made to Mr T. When explaining to Mr T why she wanted to go to (country omitted) Y told him “I want to see my (my emphasis) family.” 
240.	The Mother is proposing that if permitted to relocate that Y and X spend time with the Father in each of the school holidays in Australia. 
241.	Whilst, I have no doubt that the Mother will comply with any Orders made for the time X and Y spend with the Father and will ensure that X and Y spend time with the Father during the school holidays, I have a real concern that if relocation to (country omitted) occurs the Father’s relationship with the children will become secondary to their relationship with their extended maternal family and that, perhaps, unwittingly, the Mother will reinforce X and Y’s belief that their relationship with the Father is not as important as that which they have with the maternal family. 
242.	In all these circumstances, I am of the view that it will not be in X and Y’s best interests to relocate to (country omitted). 
243.	The Mother will be very distressed by this decision. I accept she will miss the day to day emotional and practical support that having her mother in particular living near her would provide. 
244.	However, the relatively close proximity of Australia to (country omitted), the availability of inexpensive airfares and the ability to have weekly if not daily telephone and Skype communication with the maternal grandmother are all available to the Mother and will enable the Mother to remain in regular contact with her family. 
245.	The Mother, X and Y will be able to visit the maternal family in (country omitted) during the school holidays in a pattern not that dissimilar to the Mother’s proposal of the time the children would have spent with the Father if relocation had been permitted. 
246.	Similarly, the maternal grandmother and extended maternal family will be able to visit the Mother, X and Y in Australia.
247.	In the event the Mother, X and Y are not permitted to relocate to (country omitted) the Father seeks orders be made for the time X and Y spend with him to increase from the current 2 nights a fortnight. The Father proposes that Orders be made for X and Y to spend time with him in week 1 from after school Friday to before school on Monday and from after school on Monday to before school on Wednesday in week 2. 
248.	The Mother is agreeable to X and Y spending alternate weekends with the father from after school Friday to before school Monday but is opposed to them spending overnight time with the Father in the off week as she argues that Y is not yet old enough to manage additional time away from her primary carer. 
249.	In his family report, Mr T recommends that if no relocation was allowed, X and Y spend time with the Father as they presently do on alternate weekends during school terms plus Wednesdays after school but with consideration being given to extending the alternate weekends to Monday morning. 
250.	The Father’s proposal was put to Mr T when giving his viva voce evidence as was the Mother’s evidence that she did not believe Y would cope with an increase of time to 5 nights per fortnight. Mr T is of the view that Y would cope with the Father’s proposal for an increase of time from 2 nights a fortnight to 5 nights a fortnight but he was not asked whether he had a view as to whether that would be a proposal that was in Y’s best interests at this time or whether that time should be gradually increased. 
251.	I am of the view that the time that X and Y spend with the Father should immediately be extended to alternate weekends from after school Friday to before school Monday. However, I am not of the view that at this time it would be in X and Y’s best interests that that time be extended to overnight time in the off week. I am of the view that when Y turns 7 years old the time in the off week should extend to 1 overnight time that when she turns 8 years old that time should extend to 2 nights in the second week. 
252.	The parties agree that the existing orders that provide for the sharing of the school holidays as well as provision for special occasions such as birthdays, Christmas Day, Mother’s Day and Father’s Day should remain in place. 
253.	It is apparent from the evidence that prior to the various Court proceedings commencing in early 2014 and despite their difficulties, the parties were able to negotiate some variation of parenting arrangements cooperatively. 
254.	It is to be hoped with the resolution of this matter, albeit in circumstances where the Mother will be very unhappy with that resolution, the parties’ current lack of trust and inability to communicate will abate. If, however the parties continue to have difficulties in their communication it is recommended that they contemplate obtaining some professional assistance either by way of a post separation parenting course or a post orders program to assist them to better communicate and co-parent X and Y.
I certify that the preceding two hundred and fifty four (254) paragraphs are a true copy of the reasons for judgment of Judge Bender

Associate:  

Date: 15 May 2015