The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/680.html?stem=0&synonyms=0&query=family%20law%20act
Bale & Bale  FCCA 680 (17 May 2016)
FAMILY LAW – Relocation – young child – mother is primary parent – mother’s need for actual and emotional support – attached and successful relationship between child and father – relocation permitted.
The mother’s case
- The mother says that X’s best interests are not served by orders for him to spend equal time between his parents. She says the parties have a toxic, untrusting and uncommunicative relationship. She says that she has been the primary carer for X. Importantly, she argues that X has suffered serious behavioural issues which the father has not necessarily acknowledged and which she and various experts relate to the difficulties the child experiences from the acrimonious relationship between his parents and particularly following changeovers between the parents.
- She says that she herself has endured emotional and psychological issues and argues that she needs the support of her parents who live in Brisbane given that such actual and emotional support is not necessarily forthcoming from the father himself or from his extended family in Melbourne.
- The mother is a self-employed (occupation omitted) and says that the actual support from her parents in Brisbane will allow her to more fully and productively pursue her employment. Her argument in this respect continues that her financial position would be significantly improved and stabilised by her living in Brisbane with the support of her parents. She proposes that she would initially live with her parents.
- The mother alludes to “family violence” during the relationship in its broader sense of the definition under the Family Law Act 1975 (“the Act”). She references instances of emotional “violence” with the implication that her overall parenting capacity would be enhanced by a combination of fewer transitions for X to the father, the hands-on support of her parents and placing a geographical distance between herself and Mr Bale.
The father’s case
- Mr Bale argues that he has a close, bonded and loving relationship with X, as do members of his extended family. Whilst he acknowledges the communication difficulties between Ms Bale and himself, he says that there has been improvement in this respect with the assistance of some counselling and that he is confident that the parties can work towards a cooperative and communicative relationship for the benefit of X.
- Mr Bale says that he now acknowledges that X has and continues to suffer some emotional and behavioural difficulties but that these can be attended to by his acknowledgement, better communication between the parents and expert counselling for the parents and X.
- Mr Bale argues that X, at only three years of age, needs frequency of direct contact with his father and his extended family in order to maintain those relationships.
- Mr Bale generally questions the bona fides of the mother’s application to move with X to Brisbane arguing that she has lived away from her parents for a considerable time and is a mature professional who has established personal support networks in Melbourne. He says that he and his family can offer any necessary support for the mother in her parenting of X and the implication being that a regime of equal-time for X between his parents would allow the mother to more productively pursue her profession. Further, he argues that, in any event, the mother’s historical relationship with her parents has not always been a good, close or supportive one.
- Mr Bale effectively denies the mother’s allegation of family violence and suggests that she embellishes or exaggerates such allegations in order to shore up her own case which is simply a personal desire to relocate to Brisbane or, more maliciously, her aim since separation being to thwart his relationship with X and to isolate him from the child.
- Mr Bale, who is a (occupation omitted), now says that he would be prepared to move to Brisbane (although as a reluctant option) should the Court allow a relocation of his son.
- Mr Bale represented himself before this Court. He did so in an efficient and professional manner. His cross-examination was intrusive and to the point. At all times, Mr Bale conducted himself with the utmost courtesy to the mother, the witnesses, counsel and the Court.
- The Court was greatly assisted by a family report dated 26 January 2016 prepared by a family consultant, Mr P. That report is comprehensive and composed after numerous interviews including with the paternal grandparents and apparently involving home visits.
- Not unusually, Mr P, whilst referencing the proposed relocation of X, does not make any specific recommendations for or against a relocation of the child.
- Mr P notes the mother reporting that she has historically felt a lack of support from Mr Bale. She references her own psychological and emotional issues and her need for professional help. She also references what she saw as the father’s “psychological, emotional and financial abuse” as well as “being subjected to his threats and physical intimidation”.
- The mother reported to Mr P of her observations as to X’s behavioural issues and that she sought advice from doctors and psychologists. At  of the report, Mr P notes:
Ms Bale thinks that X is at risk of “permanent emotional and psychological damage” if he remains in Melbourne having regular contact with his father. She feels she will remain a victim of Mr Bale’s mistreatment if she remains in Melbourne and stated “I don’t want X to learn this is the way you treat people”. She is concerned that X will be exposed to the same emotional and psychological abuse she received and admitted “I feel my story of abuse is intertwined with X”. Ms Bale feels that as she is X’s primary care giver, her well-being is integral to X’s well-being.
- Ms Bale advised Mr P of the difficulties that occur at changeovers for X and between the parties.
- Mr Bale confirmed to the family reporter that the relationship between the parties was highlighted by “constant argument” and that “our issues were never resolved”.
- Mr Bale confirmed to the reporter that the parents had sought relationship counselling before their separation.
- At , Mr P reports:
After lengthy negotiations at court, he began the current care arrangement of having X for three overnight periods a fortnight. Mr Bale is aware that X has been having adjustment issues and stated, “I’m trying to co-parent with Ms Bale but she’s not trying to co-parent with me.”
- And at , Mr P reports:
Mr Bale does not want to disrupt X’s primary attachment to his mother by applying to be his main care giver. He is aware X needs to gradually build up time with him and that he and Ms Bale need to work together to overcome X’s current behavioural issues. Mr Bale stated he has worked with children for 15 years as a (occupation omitted) and is aware of child developmental stages. He admits that his communication with Ms Bale is poor and there is a lack of trust between them. However he does not see how they can work on those issues if she moves to Brisbane with X.
- In his evaluation at  Mr P observes:
There appears to be no doubt that X is not coping with the conflict and ongoing tension between his parents. His concerning anti-social behaviour has been observed by his paternal and maternal family, including his parents.
- Importantly, at [42-43] Mr P opines:
Ms Bale does not know what X is like when he is with his father because of the poor communication between the parents. However she believes he suffers from separation anxiety when he is away from her and finds it hard to believe that he is not displaying similar concerning behaviour when he is with his father. I do not know if Mr Bale is minimising X’s behavioural problems or whether X “settles down” when he is with him. Mr Bale has been involved with primary school teaching for over 10 years and has been exposed to behavioural problems with children during that time. He would have developed child management strategies during that time.
It is likely the professional expertise he has developed with children helps him manage X’s transitional adjustment problems in a more successful manner than Ms Bale. Ms Bale has been described by her professional supports as having suffered from severe stress, severe anxiety, trichotillomania and depression. These conditions took place toward the end of the marriage and after separation.
- At  Mr P suggests that X may have absorbed the emotional effects on Ms Bale of the disintegration of the marriage and “is not emotionally and psychologically coping”. Significantly, the family reporter notes that the proposed move to Brisbane will have advantages that are “short term economic” and child care support benefits for her during the period of time she lives with “her parents”, (but) her main reason for the move is to avoid the emotional distress of having to deal with Mr Bale.
- Mr P insightfully isolates the major issues for this Court at  where he says:
The main issue that needs to be resolved is how to minimise the negative impact on X of (i) either his removal from his father and extended paternal family network, if he moved to Brisbane with his mother, or (ii) the emotional and psychological stress he is suffering being exposed to his parents’ conflict and poor communication if he and his mother remain in Melbourne. The stress and anxiety experienced by his mother is having a ripple effect on X.
X will have a low quantity and quality relationship with his father and paternal family if he lives in Brisbane with his mother. If he remains in Melbourne with his mother, Mr and Ms Bale would need to work together to minimise the effect their conflict is having on X. The more distressed Ms Bale is, the more it will have a negative impact on X’s well-being. To date, Mr and Ms Bale have not been able to achieve co-operative parenting and X has suffered as a result.
- Mr P gave evidence by telephone and was cross-examined by counsel for the mother and by the father. His evidence effectively confirmed that in his report that there is an importance of frequency in direct contact for young children with each of their parents. He is of the view that, therefore, “quality” and “quantity” of such contact are inherently related, at least in younger children. Mr P acknowledged that, should there be a relocation, then longer block periods of time between the children and the father (if the father remains in Melbourne) would have positive benefits and suggested that the existing relationship between X and his father and extended family, despite the child’s young age, was suggestive of X being able to “cope” with such periods away from his mother and perhaps periods longer than anticipated by the mother in her proposed orders.
An examination of relevant Full Court decisions since the 2006 amendments demonstrate, in my view, that historical principles extracted in relation to matters involving a proposed relocation remain valid. They can be summarised as follows:
- Relocation matters are to be determined generally with reference to part VII of the Act;
- The child’s best interests remain the paramount but not the sole consideration;
- A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child’s best interests (section 60CC matters) and, where appropriate, section 65DAA (reasonably practicable);
- The Court must consider the parties’ proposals, including the advantages and disadvantages of the proposed relocation, and may be required to formulate proposals itself in the best interests of the child;
- Neither party bears an onus to establish that a relocation or a continuation of an existing regime will best promote the interests of the child;
- An applicant for relocation need not show “compelling reasons” in support of the relocation but must produce probative evidence which permits the Court, on balance, to find that a parenting order involving a relocation is in the best interests of the child; and
- The child’s best interest must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement but that such an adult “right” must ultimately defer to the child’s best interest.
Findings and Consideration
- X is still a very young child and I am able to conclude that, in isolation, frequency of contact with his father would be of benefit to him. I must consider this finding, however, within the context of the nature of X’s current relationship with his father. Both Mr Bale and his mother assert that it is an established and bonded relationship. Whilst an older child might more easily endure the difficulties of travel and less frequent time, I am satisfied that the ideal for X would be to at least maintain the current frequency of time between he and his father. The mother’s proposal would necessarily significantly decrease that frequency. Nevertheless, this is not a matter where I am confronted with a claim that X’s relationship with his father is a “developing one” or is in any way troubled or there is a lack of bonding.
- I am satisfied that X’s primary relationship is with his mother. I am also satisfied that Ms Bale is of a significantly vulnerable and anxious personality type. As such, I dismiss any suggestion or allegation by the father that the mother’s claims in this regard are false or exaggerated or made for self-interested purposes. She has historically required professional assistance and continues to do so.
- I am satisfied that this is a mother who requires support in her parenting of her young child and perhaps more than might often be required. Again, I am satisfied that her claims in this regard are both subjectively honest and objective. Equally, I am satisfied that she does not honestly perceive that such support is forthcoming or can be relied upon from the father or his family. History gives her some support here.
- I am able to find that the mother has a high level of committed support available to her from her parents in Brisbane.
- I am easily able to conclude that the relationship between these two parents remains an extremely tense, uncommunicative and untrusting one. Whilst I am not as pessimistic as counsel for the mother in her final address submitting that “all hope” is lost in resurrecting or creating a functional or functioning communicative and co-operative relationship, certainly there has been little indication of improvement of late and it is likely that considerable time and effort would be required by both parents to achieve any degree of practical trusting co-operative parenting.
- I am satisfied that the mother herself honestly perceives that she was the “victim” of family violence within the broadest meaning of the Family Law Act during the marriage and since her separation. It is perhaps unfortunate that the mother’s affidavit material was so emphatic in its language as this would inevitably cause Mr Bale, as a self-represented litigant, to feel that he was obliged to conduct the hearing before me as a form of “defence” rather than to focus on the future arrangements and best interests for X. I am somewhat sympathetic to him in this regard. Nevertheless, I am satisfied that he continues to lack insight and empathy towards the mother’s, at least subjective, responses to the acrimony during their marriage.
- I am able to find that X exhibits unusual and serious behavioural difficulties. It is reasonable to expect that he needs professional assistance. On the balance of probabilities, I am able to conclude that X’s behaviour is directly connected to the acrimony between his parents, their own particular responses to each other, their lack of communication and the difficulties, actual and anticipated, at changeovers.
- I do not find that there are any mala fides in the mother’s application. I am satisfied that she legitimately and honestly makes her application in what she perceives as X’s best interests. Equally, however, I am not critical of the father in his responses to that application.
- On consideration, I am not able to find that a regime of equal time for X living between his parents is in his best interests. These two parents are fundamentally emotionally at odds. They do not trust each other. Their responses to X and his behavioural difficulties are at odds. Their communication is limited to formal use of media. They are suspicious and untrusting of each other. To the contrary, the experts and experience suggests that a successful equal shared time arrangement requires a high level of communication, co-operation, respect and flexibility between parents. None of these traits are immediately evident in the matter now before me. It follows then, as the parties’ various proposals, that X’s best interests are served by living primarily with his mother.
- The question remains, therefore, whether X should live primarily with his mother in Melbourne or in Brisbane. In this respect, the father’s proposal has immediate but in some ways superficial attraction. Certainly, X would have the benefit of frequent time with his father which is important at his young age. The parties live in close proximity and no practical difficulties would be apparent. X would also have the benefit of ongoing contact with his extended family who are close to him and on the evidence, he enjoys their company. The father says that he is committed to improving his communication with the mother and that he would offer her practical support in her care of X. The mother’s employment is such that she has contacts in Melbourne and the father’s proposal would allow her to more easily pursue her career to her financial and satisfaction benefit. These are all factors which support the father’s proposal.
- There are, however, also a number of positives for X in the mother’s proposal. She is an adult and prima facie has a right of freedom to live where she desires. It is reasonable to conclude that, should she be able to move to Brisbane, then she herself would be more content and that there would be a vicarious benefit to X. Importantly, the mother would have the direct support of her family in Brisbane. This is a factor often relied upon in matters involving a proposed relocation of a child but, in this particular case, there is an established factual background which has allowed me to conclude that this is a mother who legitimately craves and needs a higher level of support in her parenting. Whilst there is no particular psychological evidence that allows me to conclude that X’s particular, but relatively severe, behavioural problems would be alleviated by placing geographical distance between his parents, the evidence satisfies me that alleviating the frequency and nature of transitions between his parents would be of assistance to X. Further, the mother’s proposal is optimistic and reasonably plausible in respect of her enhancing her own career which would have flow on benefits for X.
- Matters involving the proposed relocation of the child are often finely balanced in the weighing of the various considerations. This matter is no exception and carries with it the further ingredient of X being still very young. I am of the view, however, that the mother’s personal anxieties and needs are significant including, not least, her need for actual support in her parenting. I am not persuaded that the simple allocation of an equal-time or substantial and significant time regime in Melbourne would alleviate those needs. This is a mother who needs emotional and practical support but in all other senses is an excellent and achieving parent as acknowledged by Mr Bale. Put in a negative sense, I harbour real concerns as to the impact on the mother’s happiness, emotional health and consequently her parenting capacity should she be required to remain living in Melbourne with X. Having found that X’s best interests are served by him living primarily with the mother, I am persuaded that X should be permitted to relocate with the mother to live in Brisbane.
- In making this consideration, I am mindful of the mother’s proposals for X’s time with the father. I consider those proposals to be overly conservative in respect of a child whom the father and his mother describe as robust, comfortable, at ease and bonded with the father in the father’s home. As such and supported by the family reporter, I propose that X’s time with the father be of longer durations in Melbourne (or indeed in Brisbane should the father relocate) which will itself have the benefits of allowing X to settle into his father’s home rather than be a “visitor” as might be seen in the current regime or indeed in that conservatively proposed by the mother. I am satisfied on the evidence, as corroborated by Mr P, that X would “cope” with these longer periods of time. Considering all of these matters, therefore, I am satisfied generally that orders that permit X to live with his mother in Brisbane and spend such block and other periods of time with the father is a reasonably practicable arrangement, given the evidence and findings that I have set out above. As both parents are in employment, or have the capacity for employment, I think it proper, just and equitable that they share the costs of any travel for X to Victoria for time with the father. It will be a matter for the father as to whether he applies to have his expenses recognised in any child support assessment. Any additional time in Queensland will be at the father’s discretion and also at his expense.
- Finally, in consideration of the father’s claim that he would consider moving to Brisbane and not being satisfied on the evidence that any case was made out in respect of the father’s own relocation, but mindful of his statements from the witness box, then I will reserve liberty to either party to apply in relocation to the father’s time with X should the father elect to reside permanently in Brisbane.