ADLER & ADLER

[2013] FCCA 730

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADLER & ADLER [2013] FCCA 730

Catchwords:
FAMILY LAW – Parenting proceedings – relocation – Melbourne to Hobart – whether not a relocation – responsible, competent and loving parents – father’s ability to travel weekly to see children and communicate by telephone and/or Skype – what is reasonably practicable – mother’s travel from Hobart to Melbourne – best interests of young children in the primary care of the mother – mother’s need to be close to family supports in Tasmania – mother’s ability to parent diminished in Melbourne – mother permitted to return to Hobart.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA

Applicant: MS ADLER

Respondent: MR ADLER

File Number: MLC 665 of 2013

Judgment of: Judge Hartnett

Hearing dates: 24, 25 and 26 June 2013

Orders made on: 27 June 2013

Reasons delivered at: Melbourne

Reasons delivered on: 2 August 2013

REPRESENTATION

Senior Counsel for the Applicant: Mr Dixon

Solicitors for the Applicant: Blissenden Lawyers

Counsel for the Respondent: Mr Puckey

Solicitors for the Respondent: Septimus Jones & Lee

THE COURT ORDERS THAT:

1. The mother and father have equal shared parental responsibility for the children of the marriage X born (omitted) 2008 and Y born (omitted) 2011 (‘the children’).

2. The children live with the mother.

3. The children reside in Hobart.

4. The children spend time with the father, as agreed between the parties from time to time, including as follows:-

   (a)until 21 April 2014 and during the Hobart school term periods only, each weekend in Hobart from 10.00am Saturday until 5.00pm Sunday or if Monday is a public holiday then 5.00pm Monday;

   (b)thereafter, and during the Hobart school term periods only, each alternate weekend in Hobart commencing from after school on Friday (or 3.00pm if not a school day) and concluding by returning the children at the commencement of school on Monday (or if not a school day or a child is not attending school, at 3.00pm on that day by returning the children to the mother);

   (c)at the father’s option (to be communicated to the mother 14 days in advance) one such weekend every six weeks (such option be suspended during school holiday periods) be spent in Melbourne (the father to pre-book and pay for return flights for the children and the mother, the father collecting the children from the mother at Melbourne Airport on Friday and returning them to her at that place by no later than 3.00pm on the following Monday);

   (d)during the Hobart school term holidays in 2013 the children spend a continuous period of five days with the father, subject to them spending a period of two hours with the mother during day three of that five day period. In the June/July holidays that time spent with is to be in Hobart and during the September/October holidays that time spent with is to be in Hobart or Melbourne at the father’s election;

   (e)during the Hobart school term holidays in 2014 and each year thereafter, the children spend one half with the father;

   (f)during the Christmas/New Year school holiday period in 2013/2014, and in the period between Boxing Day and Monday 12 January 2014, the children spend a continuous period of seven days with the father, subject to them spending a period of two hours with the mother during day three and day five of that seven day period;

   (g)during the Christmas/New Year school holiday period in 2014/2015 and each year thereafter, the children spend one half with the father in blocks not exceeding seven days in duration;

Christmas

(h)in 2013 and each alternate year thereafter, the children spend from 4.00pm Christmas Day until 4.00pm Boxing Day with the father;

(i)in 2014 and each alternate year thereafter, the children spend from 5.00pm Christmas Eve until 4.00pm Christmas Day with the father;

Mother’s Day and Mother’s Birthday

(j)in the event the children are spending time with the father on either the mother’s birthday or Mother’s Day, the father’s time with the children shall be suspended from 9.00am on that day until the following day at 9.00am, or return to school in the event that is a school day;

Father’s Day and Father’s Birthday

(k)in the event the children are living with the mother on either the father’s birthday or Father’s Day, they shall instead spend that day with their father from 9.00am on that day until the following day at 9.00am, or return to school in the event that is a school day;

Children’s Birthdays

(l)in 2013 and each alternate year thereafter, the children shall spend time with the father from the night prior to the child’s birthday commencing at 5.00pm and concluding at 3.00pm the following day; and

(m)in 2014 and each alternate year thereafter, the children shall spend time with the father from 3.00pm that day until 3.00pm the following day.

1. The mother shall facilitate the children having indirect time with their father, via Skype or a like medium for a period of up to 30 minutes twice each week, and telephone contact at any reasonable time.

2. The mother shall at all times keep the father informed of the children’s progress and any health issues and provide him with photographs of the children, also ensuring that the school which they attend provides to the father information and keeps him up to date with their progress at school, such information to include school reports and school newsletters.

3. In the event the father gives to the mother 48 hours notice in advance, the children spend one mid-week night with him in Hobart, commencing from after school and concluding at 9.00am the following day or at the commencement of school.

4. The children attend the (omitted) Primary School until each completes Grade 4 and then they shall each attend The (omitted) School in (omitted), the father meeting all costs associated with them attending at that school.

5. The Orders made 26 March 2013 be discharged.

6. All extant applications be otherwise dismissed.

7. Costs reserved.

8. There is liberty to apply on short notice in the event of any dispute between the parties as to the location at which holiday time spent with shall occur.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 665 of 2013

MS ADLER

Applicant

And

MR ADLER

Respondent

REASONS FOR JUDGMENT

1. These were competing parenting order applications which were commenced by the father on 1 February this year. In the proceedings the mother sought to retain the primary care of the parties’ two children and return to Hobart with them. The father agreed the mother should retain the primary care of the parties’ children should they all reside in Melbourne, and otherwise sought to categorise the proceedings as a relocation application by the mother, seeking to have the parties’ two children reside with her in Hobart, and not Melbourne, the latter which he deemed to be their home.

2. There was no dispute between the parties as to their having equal shared parental responsibility for their sons X born (omitted) 2008, who is now four years and 10 months of age, and Y born (omitted) 2011, who is now two years and three months of age (‘the children’). There are no factual circumstances which would rebut the presumption as set out in s.61DA of the Family Law Act 1975 (Cth) (‘the Act’) that such an order is in the best interests of the children.

3. The issue in the proceedings was that the father desired the mother to live with the children in the Melbourne metropolitan area as set out in the orders sought by him and as contained in the Case Outline filed by him on 24 June 2013. At trial, the father indicated to the Court that the mother could live also outside the Melbourne metropolitan area.  The mother did not wish to remain living in Melbourne and sought to return with the children to reside in her mother’s home in (omitted) in Hobart from which they had departed in the course of the preceding year, voluntarily, and again in April 2013 in response to an order of this Court.  The mother did not suggest at any time that she would leave the children in Melbourne and return alone to reside in Hobart.  She is the children’s primary attachment figure; she has been their primary carer; and separation from her for any extended period of time would be detrimental to the wellbeing of the children.  The father conceded these matters.  The mother confirmed at the outset of the proceedings that she would not live apart from her children and that, accordingly, if they were required to reside in Melbourne then so would she.  The father at the outset stated his position which was that he would not, and could not, relocate as a consequence of his employment, to reside in Hobart.  These were the parties’ respective positions and there was no movement from those positions throughout the proceedings.

4. The Court acceded to the application of the mother and made the orders pronounced on the day following the conclusion of the proceedings, namely 27 June 2013.  These reasons support the making of the Orders and are being provided to the parties following the making of the Orders made that day.  The Court notes that the mother has been at liberty to return to reside in Hobart with the children since 27 June 2013.

5. The proceedings were conducted efficiently and with a canvassing of all the relevant facts.  The mother relied upon an Affidavit sworn by her on 14 June 2013.  The father relied upon an Affidavit sworn by him on 18 June 2013.  Each were cross-examined by the other. There was also before the Court in evidence a Family Report prepared by Ms D, psychologist (‘the family consultant’), dated 7 June 2013 and annexed to her Affidavit sworn 17 June 2013.  Ms D was cross-examined by each of the parties in the proceedings. 

6. Statements of fact in these reasons are findings of fact on the balance of probabilities.

History

Up to Separation

1. The mother was born in Hobart in Tasmania on (omitted) 1977.  She is now 36 years of age.  The father was born also in Hobart in Tasmania on (omitted) 1977 and he is also 36 years of age.  The parties met at school in Hobart and were in a relationship from about 13 years of age.  They commenced living together in Melbourne in 1998. The mother had commenced university in Melbourne in 1996 and was joined by the father in 1998, after he was able to transfer his university studies from Hobart to Melbourne. The mother then ceased university in 1998 when she began working.  The father completed a (omitted) course and upon completion he also joined the workforce in Melbourne.  The parties then left Australia in 2004 with the intention of travelling for three months before taking up residence in London for an indeterminate time. This occurred and between January 2005 and July 2008, the parties resided in London. The father commenced to work for the (omitted), a position which entailed some travel. The mother also worked. They married during this period at the (omitted) Registry Office on (omitted) 2007.  They also purchased a property at Property A in the State of Victoria (‘the Property A property’), which they have from time to time resided in, left empty or rented out.  Whilst they were in London, they rented the property out but made arrangements to move into it pending the birth of their son X in 2008. 

2. In April 2008, the parties returned to Melbourne in preparation for the birth of X later in the year.  The parties had arrived in Australia in February 2008 and stayed for around two months in Hobart and had their wedding reception there.  They then moved in to the Property A property, with the father travelling back to London to work in early May 2008 for a few weeks and between 24 June and 15 September 2008, leaving the mother (at these times) in Melbourne on her own.  The father was home for the birth of X in (omitted) 2008. The maternal grandmother travelled from Hobart to Melbourne for X’s birth. In late November 2008 the father was required to travel to (country omitted) where he remained until 24 December 2008.  The mother and X went to Hobart during his absence with the father joining them for the Christmas period. They remained in Hobart until 19 January 2009.  The parties then returned to the Property A property before the father again left to travel overseas in his employment. He returned to Melbourne to collect the mother and X so that they could all return as a family to live in London from May 2009.  Whilst the father was in the (country omitted), and between March and April 2009, the mother had again resided with her family in Hobart.  The parties remained living in London from May 2009 until 27 September 2009.  During these four months, the father worked on tour for the (omitted) and was away for a period of four to six weeks.  He also travelled on other occasions with the mother and X sometimes accompanying him. At other times, she and X were left alone in their rental property at (omitted).  The mother described that as a lonely and isolating experience for her in London. She was no longer working and fully occupied in caring for the parties’ young son.

3. The parties returned from London in time to celebrate X’s first birthday in Hobart with family and friends.  This was October 2009.  The parties then had a 10 day holiday in (omitted) before returning as a family to Melbourne. Shortly thereafter, the father went to (country omitted) on tour (31 October 2009) and remained away until 6 December 2009.  In the father’s absence, X and the mother again flew down to Hobart to be with family from 10 November 2009 until late January 2010.  In January 2010, the parties travelled to (omitted) for four days for the father’s work before returning to Melbourne on 27 January 2010 to prepare to leave for London again on 26 March 2010. 

4. Upon their return to London the parties rented a property in (omitted). The father travelled to the (country omitted) for the (omitted) tour from 25 April until 17 May 2010.  X and the mother stayed in London during this tour. The family later toured together and the mother discovered she was pregnant with the child, Y, whilst on tour in the United Kingdom around August 2010.  The father, following the completion of the tour, went to a (omitted) for about a week in the (omitted) in (country omitted).  The mother was, at the time, stressed, having received a high-risk pregnancy scan. She was suffering morning sickness and trying to cope with a toddler.  The father came home from (country omitted) the night before the parties again flew out to Australia on 30 September 2010. They remained in Melbourne for a couple of days before flying to Hobart to celebrate X’s second birthday in October 2010.  They again holidayed as a family with their friends from Hobart in October 2010 for around 10 days in (omitted), as they had done the year before.  X and the mother then remained in Hobart for a couple of months before travelling to Melbourne on 10 December 2010 to meet up with the father, who had been touring with the (omitted) in the weeks before.  X and the mother toured with (omitted) to (omitted) before returning with the team to a hotel in Melbourne to celebrate Christmas.  Thereafter, the family travelled with the (omitted) to Sydney before returning to Melbourne on 9 January 2011.  They remained in Melbourne until the father travelled to (country omitted) from 12 February 2011 until 25 March 2011.  During that period of his absence, the mother and X stayed in Hobart before travelling back to Melbourne on 17 March 2011 to await the birth of Y.  The father was present at Y’s birth but was required to return to his employment in London approximately four weeks later.  The maternal grandmother was also present for the birth of Y. The mother’s sister came from Hobart to Melbourne to help her with her newborn child and two and a half year old X. 

5. With the assistance of her sister, who travelled with her, the mother returned to London on 9 June 2011, with X, and Y, who was a number of weeks old.  Within two months the relationship between the parties had ended and the mother was back in Hobart, in the home of her mother, with the children. On the many occasions that the mother had resided in Hobart following X’s birth, it was in the home of her mother.  In August 2011 and at the end of the marriage, the father accompanied the mother and children on their plane trip from London to Hobart, and he remained in Hobart for a period of approximately 24 hours before returning to London.  He resumed his employment for a time, before ceasing such employment. In Hobart, the mother applied for a single parent pension from Centrelink which she has continued to receive to the present time.

Post Separation to July 2012

1. The relationship between the parties ended upon the father stating he no longer loved the mother and wished for a separation. Both parties felt great sadness. The mother felt extremely vulnerable and unable to function without the support of her family. The father understood that.  The mother returned to Hobart, it being the only place she could contemplate residing in, and took up accommodation in a home she was familiar with. Her mother, in particular, provided the very necessary to her, family support. She was, and remains, emotionally fragile and needed and still needs her mother’s constant emotional and physical support and proximity. She was also returning to a place where she had spent a large part of her time since giving birth to X.  The father followed the mother to Hobart in late September 2011. He endeavoured to secure employment with the (omitted) in Melbourne. He had sought such employment over a number of years. In October 2011, he travelled overseas to (country omitted) for approximately one month with the (omitted).  In January 2012, he returned to Melbourne to reside permanently to commence the employment he had obtained with the (omitted) as (omitted). He obtained a contract with a remuneration package of approximately $180,000. Between January and July 2012, the mother and children remained living in Hobart (where they had resided since August 2011) and the father travelled to Hobart on most weekends to see the children and occasionally mid-week.  The mother travelled to Melbourne on a couple of occasions in that period of time to enable the father and children to spend time together.  Cheap flights were, and are available to the father, and were used by him in the period from January to July 2012.  Flights out of Melbourne were readily available and return flights from Hobart to Melbourne likewise.  The father’s evidence was that this arrangement was ‘shocking’ for he and the children, and the limited contact he had with the boys adversely affected their relationship with him. Yet he had delivered the mother and children to Hobart on separation and knew the mother intended to live, and was living, in Hobart.  He sought out employment in Melbourne and, had he not obtained it, would have remained employed by the (omitted).

2. In that period from August 2011 to July 2012, being a period of 11 months, the mother and children continued to live in the maternal grandmother’s residence in (omitted) in Hobart. This is a large, five bedroom property with ample accommodation and set in a spacious and delightful environment. The children had and have animals, space, gardens and activities set up for them. The mother maintained a relationship between the children and their paternal grandparents, in particular the paternal grandmother. X commenced at (omitted) pre-school in February 2012.  The parties agreed that X should enrol in the pre-school at (omitted) Primary School in Hobart and both attended an orientation day (X in fact commenced to attend there in the early part of 2013, following the mother and children’s return to Hobart). The father lived with his mother at her property (which is around the corner from the (omitted) residence of the maternal grandmother) when staying in Hobart. The father told the mother that he was not interested in looking for work in Tasmania and that he was applying for a position within the (omitted).  The mother told the father that she was not interested in returning to live in Melbourne as a single mother, and that she would not be travelling to Melbourne with the children unless they were living a married life.  Accordingly, when the father commenced his employment in Melbourne in late January 2012, the mother remained in Hobart with the children in her mother’s residence until July 2012, when, by agreement, she and the children moved into the Property A property in an attempt to resume the marriage. What preceded that, was that the parties had attended possibly three counselling sessions in Hobart aimed at restoring their relationship, but because of the father’s work commitments, it proved almost impossible to continue with these sessions in Hobart.  The father moved out of the Property A property and into a rental property nearby when the mother arrived. The parties commenced to see a counsellor in Melbourne for regular counselling sessions in an effort to effect a reconciliation of their marriage. 

The mother’s time in Melbourne between July 2012 and January 2013 and from April 2013

1. Although the parties were attempting reconciliation from July 2012, they never actually lived together again. The mother had hoped that the father would reside with her but he did not wish to. The father indicated to the mother that he hoped to move back into the family home by Christmas 2012, which ultimately did not occur. There was no intimacy between the parties.  They did not go out as a couple on any occasion. The father would come and go from the Property A property in which the mother and children were residing.  He did not stay overnight at all in that period.  He would go to the house and spend time in the morning with the children before work, and he would go in the evening after work and on weekends to help bath and feed the children before putting them to bed.  The parties travelled with their children to Hobart for the Christmas period for approximately two or three weeks at the end of 2012, before returning to Melbourne on 9 January 2013.  On 23 January 2013, the mother made the decision to return to live in Tasmania with the children and put it into immediate effect. 

2. The father’s evidence was that the mother left Melbourne with the children without his knowledge or consent on 23 January 2013.  Certainly he did not consent and it is true that he did not have prior knowledge of her imminent departure. The circumstances of the mother’s departure were that the parties had both been invited to a wedding in (country omitted) in August 2013.  The father sent the mother an email about the proposed accommodation of the parties in (country omitted), whereby they would each be having separate bedrooms.  The mother was upset with the state of the relationship, as evidenced by the father’s email to her.  She emailed to the father:-

   “We are either married or we’re not.  Two feet in or two feet out.  You are taking total advantage of me.  I have suffered enough.  If you don’t want this marriage then that’s fine but at least have the balls to cut me free.  I’ve been led on by you long enough and it’s a struggle to know that you are capable of treating me like that.  I just always thought so much of you.  We need to arrange a routine/schedule when you will be having the boys for the next couple of weeks.  Maybe you can start by picking up the boys from care if you like and taking them out for dinner, then drop them off at bed time?”

3. Thereafter, further email correspondence passed between the parties whereby the mother indicated that she was moving out of the Property A property.  The father indicated that she could remain in it and that selling at the moment was not necessary, but the mother responded:-

   “I won’t be staying in the house though?  You know the drill, I’m heading back to Tassie.  I want to get back for the start of school, to make as easy transition for the boys as possible.”

4. The father responded on 22 January 2012 at 4.23pm as follows:-

   “And what am I supposed to do, live in another state (sic) away from our children.  You will be happy for me never to see them again?  This can’t happen, that’s punishing them and me for something that is about our relationship.”

5. The mother then responded in part and relevantly as follows:-

   “I made my intentions extremely clear that I was coming to Melbourne to work on our marriage.  You have decided that you can’t make it work and therefore there is no longer a reason for me to be here.”

6. Further emails then passed between the parties with the last two including the following comments:-

   From the father on 23 January 2013 at 12:22pm:-

   “I can understand you wanting to go to Hobart for a bit and that’s fine provided the boys stay here in Melbourne.  Aside from the fact that X is starting school shortly I’m sure you can understand why that is given what you were saying last night.  I have absolutely no problem with you heading down there whenever you like because I know that’s important to you – and I’m happy to help you pay for that because that’s only fair – and it’s good for the boys to spend some time down there, but they don’t need to be down there at the moment.  We do need to spend some time both figuring this out by ourselves and together.”

   The mother’s response at 1.57 pm:-

   “Well I guess I will have a look at flights and what could possibly work.”

7. Later that day and being 23 January 2013, the mother left Melbourne with the children and travelled to Hobart.  She left a note for the father saying that she was sorry that she had left.

8. The father was ‘devastated’ by the actions of the mother and the mother for her part was sorry that she had not been able to tell the father of her imminent departure, but indicated to him that she could not have coped with him stopping her.  Thereafter, and over the course of the next week the father emailed and telephoned the mother to try and negotiate a return to Melbourne for the mother and the children or the children alone. (He had earlier stated that the children should stay in Melbourne if the mother returned to Hobart for her family’s support. The mother would not consider leaving the children without her).  The mother’s response was to indicate to the father through her solicitor and on 30 January 2013 that it was her intention to remain residing in Tasmania.  The father determined that the mother had, without his consent, decided to permanently reside in Hobart with the children.  He issued an application to the Court seeking the mother and children’s return to Melbourne.  The mother determined that the husband had “gone back on his word”. She had not anticipated that, and was herself shocked by his behaviour. She opposed the application to return with the children to Melbourne. X had lived in excess of 24 months in Hobart, 18 months in Melbourne and 12 months in London up to the time at which he was required to return to Melbourne.

9. The father was successful in that early application.  The matter proceeded before Riley FM (as Her Honour then was) on 26 March 2013 and in Orders made that day, the mother was required to return the children to reside in the Property A property, on or before 20 April 2013.  The mother complied with those Orders and returned with the children to take up residence again in Melbourne. She occupied the Property A property and the father made all payments with respect to such occupation. In addition he paid and continues to pay, his child support assessed sums.  She remained pending the hearing of her application that they be permitted to live in Hobart. X attended at the (omitted) pre-school. Both that school and the Hobart pre-school remain available to him. Both are suitable for his needs.

10. The parties had, since separation, discussed the sale of the Property A property of which they are joint proprietors and discussed proceeding with that sale towards the end of the 2013 calendar year. The father proposed in the course of these proceedings that there be no immediate sale of the property. He proposed that the mother and children should continue to reside in that property in relation to which he would make the mortgage repayments until such time as the mother became full-time employed. The mother has no present intention of re-entering the workforce and nor had there been any discussion between the parties that she do so. Moreover, the mother did not wish to remain in the Property A property; did not wish to remain in it in January 2013; and desires it to be sold. If required to remain residing in Melbourne, the mother’s evidence was that she had no idea where she would live, or what she could afford in terms of rental payments. The prospect “horrified” her.

Consideration

1. Amongst the email exchanges between the parties, at the time the mother left Melbourne with the children in January 2013, was a clear statement by the father that he would never agree to the children residing in Hobart. All his actions over a considerable period post separation were directed toward having them live in Melbourne and establishing Melbourne as their home.

2. The children have a secure attachment to both of their parents. X displayed to the family consultant, Ms D, that he had a sense of belonging to a reliable family unit consisting of both parents and his brother.  Y presented as younger than his two years and displayed some anxiety when separated from his mother. The family consultant referred to him needing predictability, consistency and routine with no extended periods of overnight time away from his mother until aged three years.

3. The family consultant’s evidence was that there were risks to the children in a relocation back to Hobart. She said in her report dated 7 June 2013 as follows:-

   “106. There are risks to these young children in re-location; even though it might be argued that the children’s separations from their father, caused by Mr Adler’s work, have, to date, not impacted negatively on their relationship with him.

   107. Y, at 2 years of age, will not understand his living arrangements. While it might be said that Y is at the end of the attachment formation phase, until the age of 3 years there is a risk of Y having his established relationship with his father eroded, unless there are meaningful, regular and predictable interactions with his father.

   108. At 2 years of age Y cannot understand changes. He cannot express how he feels verbally. He requires as little disruption as possible in his routine and minimal separation from his primary carer. He cannot understand the concept of time beyond today and tomorrow.

   109. At his age Y needs predictability, consistency and routine; not extended periods of overnights, no more than 2 nights, away from his mother. At the same time the child needs, if possible, weekly time with his father to retain the quality of his relationship with his father.”

4. The mother disagreed with the family consultant’s assessment as to any potential erosion of the relationship between Y and his father. She referred to the children’s strong and loving bond with the father as observed by the family consultant despite the many, and at times lengthy, absences of the father from them to date. That bond was forged by the dedication of both parties to the maintenance and development of a loving relationship with both parents. The evidence is that the father will not have the ease of access to the children he has had since April 2013, nor in the period between July 2012 to January 2013. But his time spent with the children at trial was each alternate Friday to Sunday and each Tuesday overnight. It is this midweek period he shall miss, on the mother’s proposal to be substituted by alternate weekend time extending to Monday morning; Skype; and the father travelling to Hobart generally at will to see the children. Whilst not as optimum an option, the mother’s proposal still provides for the preservation and development of the close bond between the father and the children which is very much supported by her, their primary attachment figure. The concerns of the family consultant with respect to Y can be addressed by the making of orders, which provide that until three years of age, Y will see his father weekly. This requires of the father that he travel on weekends but it is for a limited time and able to be done by him. The children’s meaningful relationship with the father can be maintained by orders made for regular and frequent contact between the father and the children in the form provided for.

5. The mother initiated and has always promoted the use of Skype between the father and the children to better enable the children to keep in touch with their father when he has been absent. She commenced this practice when X was less than 12 months of age.  Although the father complained that at times the children are not settled, the mother has thought carefully about the best times for a Skype communication to occur and has acted to promote the best possible experience for the children and the father. She considered them settled at meal times in particular and attempted that form of communication then. The father was not happy with that arrangement and proposed he use Skype with the children during his working hours but not at a set time or on a set day. He wished for flexibility to fit in with the children’s moods and to be able to Skype perhaps twice a week together with frequent telephone communication in the event the children resided in Hobart. That will occur and it will remain a matter for the mother to determine when the children are best ready to participate in this form of communication and make it meaningful.

6. Before the mother travelled to Melbourne in July 2012 considerable email communication was had between the parties.  The father communicated his desire that he wanted the family to be together and that he did not want them to be living in different States. The mother set out, very clearly, the basis on which she was prepared to take up residence again in Melbourne. In an email of 18 June 2012 she said in part as follows:-

   “I also wanted to clarify my position, and hence yours, on my agreeing to come to Melbourne.  I’m coming to Melbourne with the boys, in a living arrangement in our family home, purely to work on our relationship.  If at any point of time where you or myself decide that it’s not working out, then I wish for confirmation from you, now, that I can take the boys back to Hobart to live.  I know we have discussed it, but it’s something else that worries me about the move that needs clarification.”

   and later on that same day in response to the father claiming that he thought it unfair that he should agree to her return to reside in Hobart with the boys she said in part as follows:-

   “I understand that you think it’s unfair, and it may well be, seemingly.  I don’t like having to even ask you, because it’s the last thing in the world that I would want.  But what is more unfair is that, out of love in my heart, I come to Melbourne to work on my marriage and for me to be then kept there with the boys against my will.  That’s part of my non‑negotiable … it is a prerequisite for me to come to Melbourne that I have your word that you won’t keep me and the boys in Melbourne against my will.  I don’t have any intention of staying in Melbourne if things don’t work out.  And, once again, I have been very clear about that.”

7. At trial the father’s evidence was that he had agreed to the mother returning to Hobart if it did not work out between them, but not to the children returning with her.  If this was truly the case, which I do not accept and find implausible in the extreme, the necessary extension of such an outcome was that the children would be separated from their primary carer and attachment figure, who was living in a different State, and commence residing with him, whilst he continued to work five days a week, and three out of four weekends in each of the months of February and September in addition to some other weekends. He proposed that he would have had to put the children in day care during each working day.  He acknowledged that scenario was not in their best interests. The father clearly, in the email exchange of 18 June 2012, indicated to the mother in response to her saying:-

   “you are telling me you would keep me and the boys [in Melbourne]”

   that he would not act in such a way against her will. He gave an undertaking and she relied upon it, and left a settled and surrounded by family environment, to travel to Melbourne and try to resurrect her marriage.

8. The father conceded that the mother found happiness, contentment and support, both physical and emotional in Hobart, and was not happy in Melbourne. He proceeded to attempt to keep her in Melbourne, against her wishes on the basis that in his opinion, into the future, she would be “fine”, and she would be “happy”. This was despite her obvious unhappiness. That unhappiness is likely to have a negative impact upon the children. Remaining in Melbourne had many downsides for the mother. She described herself as being “frightened of being on my [her] own and isolated here”. She has always wanted the children to be around extended family. She needs her mother whom she describes as her “rock of support … a brilliant mother to me and, a brilliant grandmother to the children.” She views her purpose in Melbourne to be at the “beck and call” of the father, given the history of her coming here from Hobart and what thereafter occurred.  The mother acknowledged the father’s wants and needs were all best met in Melbourne where he demanded she and the children remain. Her evidence was however “I don’t feel like I can move on when I’m in Melbourne because I am not in a place where I’m happy.” She said of the children “They can have a beautiful life in Hobart … as opposed to an uphill battle in Melbourne.”

9. The mother viewed Hobart as an easier community in which to raise children. Whilst she had some friends in Melbourne, and long-standing ones, the reality was she rarely saw them due to difficulties with travel, them being available, and her own obligations to the children. Hobart represented for the mother a much greater opportunity to be supported at home and within the community, in her changed circumstances as a separated parent. Living there would enable her to be “the best mum I can.”

10. The mother, when interviewed by the family consultant in the earlier part of this year was still very much in the early stages of grief and loss over her marriage as described by the family consultant. Those emotions were still “extremely raw”. The father was more advanced in his progression through their separation. The family consultant noted the mother’s responses limited her ability to realistically consider a future in Melbourne at that time. She said the mother could not countenance it at all, and remained heavily dependent on her mother for emotional support.  She did not impress however, as determined by the family consultant, as having any psychological disorder and the family consultant noted it would be highly beneficial for the mother to achieve some emotional distance from the father, a matter which on the evidence, the mother was clearly endeavouring to do. The family consultant found the mother and father to be both good and loving parents who co-operated with each other for the benefit of their children. Both have a lot to offer their children and the children derive significant benefit from time spent with each. 

The Legislation

1. Section 60CA of the Act is as follows:-

   “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.”

2. Section 60CC of the Act is as follows:-

   “Determining child’s best interests

   (1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

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

   Additional considerations

   (3)  Additional considerations are:

   (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;

   (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);

   (c)     the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (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;

   (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;

   (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;

   (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;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)     the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)     any family violence involving the child or a member of the child’s family;

   (k)     any family violence order that applies to the child or a member of the child’s family, if:

   (i) the order is a final order; or

   (ii)     the making of the order was contested by a person;

   (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;”

   (m) any other fact or circumstance that the court thinks is relevant.”

1. Section 60CC(5) of the Act is relevant to consent orders and not applicable here. As can be seen from s.60CC of the Act as set out above, the Court must consider certain matters. On the facts of this case, it is clearly beneficial for the children to have a meaningful relationship with each of their parents and s.60CC(2)(b) of the Act has no application here. Nor do the provisions as set out in s.60CC(3) subparagraphs (j) or (k) of the Act. The children themselves have expressed no views and nor are they of sufficient maturity to give any views held by them, were they expressed, significant weight. There is also no failure on the part of either parent to engage with the children; to act in their best interests; and in accordance with their parental obligations.

2. When turning to the remaining additional considerations the Court is mindful of the following on the evidence. There is no dispute between the parties that the children should reside with the mother.  The issue is where that should be. The children have their primary attachment figure as their mother.  They are attached to and know their father. They are, despite his absences, strongly bonded to their father. They are also close to, and have a strong emotional connection with, the maternal grandmother who provides for some of their emotional and intellectual needs. She also provides for some of their physical needs in the provision of her home and her assistance in their care. The children have also warm relationships and familiarity with their extended family, both maternal and paternal, in Tasmania. There are grandparents, uncles, aunts and cousins. The children have not lived with their parents in a united family home since August 2011 – a period of some two years.  That they can present to the family consultant as an intact family unit says much about both parents, but in particular the mother who has worked hard to support the fractured family unit, and shelter the children from any adverse impact. It is likely the children will miss seeing their father on the more regular basis that he is available to them in Melbourne. Until Y is aged three years, he should see his father weekly and orders have been made, which are both practicable and affordable, to provide for that regularity of time spent with.  Thereafter, alternate weekends and holidays and other times as agreed can be spent, being a regime to which each of the parties is committed because each understands the importance of the other in the life of their children. Each is a responsible and loving parent. The mother’s capacity to provide for the emotional and intellectual needs of the children exceeds that of the father. This is a result of her being historically their primary carer.  She is highly attuned to their needs and has dedicated herself to providing for them. The father’s suggestion that the children could remain in Melbourne with him for a time, whilst the mother remained in Hobart and he worked, showed little insight. It appeared more to be an attempt to force the mother into acquiescing with his demands that the children and the mother remain in Melbourne to be close to him whilst he continued in his chosen employment. The mother’s comment that she felt like a “glorified nanny” is understandable in that context.  The mother is also aware that her being happy is important and goes to her ability to properly care for the children. She has legitimate reasons for claiming that happiness is for her, being able to reside with the children in Hobart and she has put them forward as relevant considerations in determining the best interests of the children.

3. It is not reasonably practicable for the children to live with their mother in Hobart, if the father remains in Melbourne as he shall, and spend equal time with their father or substantial and significant time in the event he fails to travel to Hobart to see the children on week days. It is not reasonably practicable for him to be involved in the children’s daily routine whilst residing in Victoria (see s.65DAA(2)(3) and (5) of the Act). This does not in any event appear to be in dispute.

4. The mother and the children shall be permitted to return to Tasmania without delay.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  2 August 2013